Open recruitment and positive action

Woman in interview

Employers may take certain and specific legal actions under the Equality Act 2010, which seek to address the social and economic disadvantage individuals may face. 

What is positive action?  
 
  • Positive action refers to ways that employers can (but are not required to) counteract the disadvantage experienced by specific groups in society. Positive action is permitted under Section 158 of the Equality Act 2010. 
  • Positive actions seek to offer equal opportunity to those in these groups who may otherwise have been disadvantaged. This disadvantage is likely to be deep rooted and historical. In particular this can be attributed to people from groups which hold a protected characteristic under the Equality Act 2010 (race, gender, religion, age, sexuality, disability, marriage/civil partnership, pregnancy/maternity).  
Despite positive action being robustly permitted within a legal framework, there are very few working examples of its use across the UK. 

What action can employers take?  
 
Section 158 of the Equality Act allows only proportional positive action to be taken as above. Proportional action would be considered those scenarios in which an individual considers that: 
  • persons who share a protected characteristic suffer a disadvantage connected to the characteristic
  • persons who share a protected characteristic have needs that are different from the needs of persons who do not share it, or  
  • participation in an activity by persons who share a protected characteristic is disproportionately low.   

According to the Equality Act 2010, specifically preferential action is allowed in the instance of a person with a disability. This would be through the provision of reasonable adjustment where needed and appropriate.  

Positive action can also be used in the instance of disabled applicants. Employers are permitted to offer all disabled applicants an interview should they meet all the essential criteria outlined in the specification for the role.  

Positive action does not only relate to recruitment activity. Positive and proportional action can be taken to support those at a disadvantage in employment. Such actions could seek to equalise opportunities to access training and promotion for example.  
 
Positive action vs positive discrimination  

Positive discrimination, unlike positive action, is not allowed in recruitment and employment.  

Similarly, setting a quota to recruit a specific number of people from a specific protected group is also positive discrimination.  

Why take positive action?  

A diverse workforce has been found to be more innovative, creative and productive. Therefore it makes good business sense to take action to ensure you have a diverse workforce at all levels.   

The Public Sector Equality Duty (PSED) which came into action in 2011, includes section 149, which required public authorities such as the NHS to take action to:
 
  • Remove/minimise the disadvantage experienced by people connected to their protected characteristic. 
  • Take steps to meet the needs people from protected groups where these are different from the needs of other people.  
  • Encourage people from protected groups to participate in public life or in other activities where their participation is disproportionately low. 

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