In brief

On 17 March 2023, the government published an update on its progress in delivering its Inclusive Britain action plan that it published in March 2022. As part of that update, the government has published guidance for employers on how to take positive action to help people with protected characteristics overcome certain barriers and improve representation in their workforce without falling foul of the unlawful discrimination rules.

In more detail

Background

The Equality Act 2010 permits (but does not require) private sector employers to use positive action generally and specifically as a tiebreaker for preferential treatment in a recruitment or promotion process. General positive action measures are subject to relatively flexible legal criteria. These permit initiatives where an employer reasonably thinks that individuals who share a particular protected characteristic (e.g., those of a particular sex, race, sexual orientation etc.): 

• suffer a disadvantage related to that characteristic; 
• have disproportionately low participation levels in a particular activity; or 
• have bespoke needs. 

Where this is the case, employers can take action which represents a proportionate means of achieving the aim of minimising that disadvantage, encouraging participation or addressing the needs specific to those who share the protected characteristic in question. Measures of this type would typically include targeted open days, mentoring circles, employee resource groups and the establishment of aspirational diversity targets. We are seeing employers increasingly use general positive action. However, as the scope of the rules is uncertain, employers who undertake the more radical positive action initiatives tend to be those willing to accept the risk of legal challenge and/or backlash.

The more specific tiebreaker provisions under the Equality Act allow an employer to go further. Where candidates for recruitment or promotion are equally qualified, the employer can lawfully select the individual with a particular protected characteristic (e.g., an ethnic minority candidate) provided that: 

• it reasonably believes that those who share that characteristic suffer a particular disadvantage or are disproportionately under-represented; 
• the action is a proportionate means of minimising that disadvantage or improving participation; and 
• the employer does not have a general policy of treating those with particular protected characteristics more favourably.

These tiebreaker provisions have been interpreted very restrictively by the courts and tribunals, and are therefore rarely used in practice. 

Government guidance

The government’s guidance on positive action is intended to help employers understand how they can use the positive action provisions under the Equality Act 2010 to remove barriers to diversity in their workforce and enable equality of opportunity. The guidance is intended to be read alongside the EHRC’s Statutory Code of Practice on Employment, which has a dedicated section on positive action.

The guidance explains the differences between lawful “general” and “recruitment and promotion” positive action versus unlawful positive discrimination, through worked examples. 

Employers considering taking positive action measures should consider and document the following:

• evidence of the disadvantage, particular need or disproportionately low levels of participation, as appropriate, and an analysis of the causes
• the specific outcomes which the employer is aiming to achieve
• the possible action to achieve those outcomes
• an assessment of the proportionality of proposed action
• the steps the employer decides to take to achieve these aims
• the measurable indicators of progress towards those aims, set against a timetable
• how they will consult with relevant groups, such as all staff, staff support groups and members of the protected group the programme is being established for
• the time period for the programme
• the period after which the employer will review the progress of the measures to ensure it remains proportionate

Recognising that this area of law can be complex, the government recommends taking legal advice before deciding on a positive action programme based on a protected characteristic. We would be happy to advise on any positive action steps you are considering taking or on your inclusion, diversity and equity programme more generally. For more information, please see our “Is now the time for (positive) action?” article considering the boundaries of permitted positive action in the UK and practical guidance for organisations navigating these important issues.