How to approach positive action in the UK for equality, diversity and inclusion

The UK government in April published its Inclusive Britain update report on the steps that have been taken to address the actions set out in its inclusivity strategy in March 2022 and to support equality, diversity and inclusion (EDI).

The strategy published last year was in response to recommendations made by the Commission on Race and Equalities (CRE) in 2021 to tackle disparities and injustices faced by ethnic minorities. These included promised guidance on the positive action provisions set out in the Equality Act 2010 that support employers wishing to create opportunities for under-represented groups within their workforce. While the guidance stemmed from the findings of the Commission on Race and Equalities, it applies equally to all the "protected characteristics".

A broader focus

Historically, advice on positive action has tended to focus on women; for example, recruitment in sectors such as energy and utilities as well as opportunities for promotion into senior management positions. More recently, as the CRE report identified , the Covid-19 pandemic highlighted the disparities in treatment faced by those from ethnic minorities and the need for more government action in this area, such as the recent government guidance published on ethnicity pay-gap reporting.

Businesses are now increasingly recognising the benefits of doing more to recruit and retain older workers and this brings different challenges for recruitment and promotion initiatives. Osborne Clarke recently commissioned a survey on the ageing workforce and held an event in London, with guest speakers from Barclays and 55/Redfined, in which the discussion focused on what older workers are looking for from their employers and what measures can be taken to attract and retain them. The survey found that many individuals expect to work into their 50s and early 60s and that, as well as flexibility and a more tailored benefits package, opportunities for promotion remain valuable.

In response to the latest government guidance, it can be tempting for businesses to focus on steps that are more visible and immediate. This can inadvertently create situations where – however well intentioned – the actions taken, while positively benefitting one group of disadvantaged individuals, in fact discriminate against others. Lawful positive action can easily shift to unlawful discrimination, and this is starting to be evident in Employment Tribunal proceedings.

What is lawful positive action?

Positive action involves proportionate actions permitted under the Equality Act 2010 that are: designed to enable or encourage people who share a protected characteristic to overcome or minimise a disadvantage connected to that characteristic; meet group needs that are different from those of people who do not share that characteristic; and enable or encourage people who share a protected characteristic to participate in an activity where they are disproportionately under represented. There is no limit on the action that could be taken, provided it satisfies the statutory conditions.

The latest government guidance sets out a number of examples for the actions that it proposes. These include making a statement in recruitment advertisements that the employer welcomes applications from the target group, for example, "older people are welcome to apply". Another example is creating a work-based support group for members of staff who share a protected characteristic and who may have workplace experiences or needs that are different from staff who do not share that characteristic; as well as reserving places on training courses for people with the protected characteristic. This supports and builds on existing guidance from the Equality and Human Rights Commission and Acas.

The guidance also addresses the separate "tiebreaker" provisions in the Equality Act 2010 which, in limited circumstances, would permit an employer to recruit or promote a particular individual with a protected characteristic to address a disadvantage when choosing between candidates of "equal merit". This provision is not commonly used and, given the inherent difficulties associated in proving that the recruitment or promotion comes within the statutory provisions, it is not one that employers are recommended to use except in exceptional circumstances and with the benefit of prior legal advice.

Steps to EDI

Before introducing any initiatives, a first step will always be to explore thoroughly why an action is proposed. Employers are operating in a climate of increasing transparency and accountability. A measure that is beneficial to some may be viewed as unfair to others – and even unlawful. It is, therefore, vital to have evidence in place to justify a particular approach; moreover, confidentiality and data protection issues will need to be factored in when analysing personal data.

A second step is to ask if the proposed actions are proportionate to addressing the identified problems. Consideration should be given to whether there are alternative measures that could achieve the same effect and are less likely to result in the unfavourable treatment of other people. It is unlikely that there will be good justification for taking the action if there are other options available.

In identifying and setting measures, it is also important not to confuse positive action with the American concept of "affirmative" action which "can be more prescriptive than positive action" and "often involves the use of quotas to reduce the underrepresentation of some groups" – for example, by setting quotas to interview a minimum number of people from under-represented groups for certain roles, which could constitute positive discrimination. The guidance states that quotas can be distinguished from "targets", which are "not mandatory and can be used to make improvements without compromising the ability for employers to put forward the best candidates for roles".

Thirdly, it will be important to be accountable: what timescales are you looking at, how will you communicate with staff, how will measures be kept under review? The last few years have highlighted how employers need to keep a step ahead of changes in the fast-evolving workplace. Measures that may be appropriate now may need to be adapted later or brought to an end, if the situation driving the need for the positive action has been resolved.

Osborne Clarke comment

Employers should remember that positive action is entirely voluntary. There is no requirement for an employer to use positive action. However, as diversity and inclusion can bring advantages to a business, employers will want to ensure that they are capturing the skills and talent they need to grow and succeed. After careful analysis of the available evidence, it may be that employers should consider positive action.