Practices need to take into account the new positive action provisions in the Equality Act 2011 that came into force on 6 April 2011 to ensure their employment policies are up to date.
It is no longer unlawful to recruit or promote a candidate who 'is of equal merit to another candidate', if the employer thinks the candidate:
- Has a protected characteristic that is unrepresented in the workforce, or
- People with that characteristic suffer a disadvantage connected to that characteristic.
'Protected characteristics' are: age, sex, race, disability, religion or belief, sexual orientation, gender reassignment, marriage and civil partnership, pregnancy and maternity.
Taking action to positively prefer someone must be a proportionate means of overcoming or minimising the disadvantage suffered by people with that characteristic.
To use the positive action provisions, the employer has to establish that the candidates are of equal merit. Usually this involves scoring candidates for a post on objective criteria such as ability, competence, experience and qualifications.
Once equal merit is established, the employer must have reasonable evidence that people with that characteristic are under-represented in their workforce or at a particular level.
This could be from looking at the profile of the workforce or easily available national data relating to the local area.
Some protected characteristics are more easily identifiable. It is probably easier to establish gender than religion or belief or sexual orientation.
The use of positive action must be 'proportionate', balancing the seriousness of the disadvantage/under-representation against the impact the proposed action may have on other people.
The requirement to consider all suitably qualified candidates on their individual merits still remains. The best-qualified candidate can be still be offered the post. Less suitable candidates cannot be appointed or favoured simply because they have a protected characteristic that is under-represented or causes disadvantage.
Positive 'action' must be differentiated from positive 'discrimination'.
- Positive discrimination involves recruiting or promoting someone solely because they have a relevant protected characteristic.
- Positive action is permitted where there are equally well-qualified candidates, and one of them is from a group with a protected characteristic which is subject to a disadvantage.
Positive action is voluntary and employers do not have to justify not using it.
If challenged by unsuccessful candidates, employers will need to be able to show:
- They had reasonable grounds for believing that a particular group was unrepresented or otherwise disadvantaged in the workforce.
- The appointment process objectively assessed the merits of the candidates.
- The positive action is a proportionate way of addressing under-representation.
- The candidate appointed is as qualified as any of the others.
- Jean Sapeta is a partner and London head of employment in specialist medical solicitors Hempsons, www.hempsons.co.uk