The government has published new guidance for employers who want to use positive action in the workplace to broaden opportunities for underrepresented groups. It explains how the Equality Act allows employers to use positive action under the Equality Act to create opportunities for certain people and level the playing field whilst, at the same time, highlighting the need to avoid disadvantaging other groups in a way that could amount to ‘positive discrimination’, which is unlawful.
A reminder. There are two types of positive action that are set out in the Equality Act 2010. There is the general provision in section 158 which the guidance suggests might include, for example, providing a leadership scheme to help an underrepresented group achieve more senior positions in an organisation, or providing tailored training for a group because they have specific requirements. There’s also section 159 which allows for positive action in recruitment or promotion. So, for example, hiring one candidate over another equally qualified one because the former has a certain protected characteristic that is underrepresented in the workforce. That’s the so-called ‘tiebreaker’ provision.
As we highlighted in our programme on this area a fortnight ago, the use of positive action is gaining traction with some employers - those with mature D&I strategies who want to build on the progress they have already made through existing target setting and initiatives. However, this is a complex area with legal risks which are highlighted in the guidance at paragraph 3.1. They say: ‘Using positive action to redress an imbalance for underrepresented groups may have the consequence of relatively worsening the position of other individuals or groups, so there is likely to be some risk of complaints and even legal action against the organisation taking the action. It is a good idea to get legal advice before deciding on a positive action programme based on a protected characteristic.’
That risk explains why positive action has been seldom used by employers over the past decade or so, although, we’ve noticed, that picture is changing. So, let’s consider that. Earlier Anne Sammon joined me by video-link to discuss it.
Anne Sammon: “So, I think what we're seeing is a lot more organisations look at positive action and look at the ways in which they might implement a positive action programme, but we haven't seen them actually do the implementation yet. So, there's lots of talk about it but we're not necessarily seeing that talk immediately translate into actions. I think, potentially, it can be a really useful tool so long as it's used appropriately and that means identifying what the problem is within your own organisation, what's the barrier for diverse candidates, and targeting that barrier through positive action rather than doing some sort of blanket thing that you just think might work on instinct rather than having the evidence to back it up.”
Joe Glavina: “The guidance emphasises the importance of data collection and analysis to support any action that you take. Why is that necessary, Anne?”
Anne Sammon: “So, for me, data collection and analysis is an absolute key part of any D&I strategy because you need to identify what your problem is first of all before you try and solve it. So, the reason that data collection is so important, particularly with positive action, is because what we're trying to show is, first of all, that we don't have particular diverse individuals in particular roles, or particular sections, of an organisation. We can't do that without the data. So, in order to kind of backup the reasons for taking positive action in the first place you need that data collection exercise. Then secondly, we want the data collection so that we can identify what the particular issues are affecting those individuals, or candidates, rather than doing something sweeping that might not actually have the desired impact that we're going for.”
Joe Glavina: “The guidance warns that if positive action continues indefinitely, without any review, it may no longer be proportionate. What are they driving at there?”
Anne Sammon: “So, I think that also goes back to the data collection point. If you put in place a positive action programme and it works then, over time, the issue that you were trying to address will have been resolved and therefore you won't have the justification for taking positive action. So, there's that kind of positive piece in terms of if your positive action programme works, you're going to need to know when it has worked so that you can stop, potentially, taking that step because otherwise you might be disadvantaging other candidates. Also, if your positive action programme isn't working, then that's probably the point at which you want to look at the problem a bit more deeply and shift and look and see whether there are other solutions that you might put in place. So, are there other types of positive action that you might want to engage rather than the first path that you've gone down?”
A fortnight ago, shortly after the guidance was published, Trish Embley talked to this programme about implementing positive action initiatives in the workplace and avoiding unlawful discrimination which is the big risk here. That’s: ‘Positive action gaining traction as new guidance published’ and we have put a link to it in the transcript of this programme. We’ve also included a link to the guidance.
- Link to HRNews programme: ‘Positive action gaining traction as new guidance published’
- Link to government’s guidance on taking positive action in the workplace