UK Employment Law Coffee Break: Positive action, subject access requests and our cost of living survey

New government guidance on positive action

The government has published guidance for employers on using the positive action measures in the Equality Act 2010, which was promised as part of "Inclusive Britain" along with the guidance on voluntary ethnicity pay reporting.

The guidance provides a helpful and timely reminder of what positive action is legally permitted as employers seek to address diversity and inclusion agendas.

Essentially, the statutory positive action provisions permit exceptions to the usual requirements of discrimination law that prevent those with a particular protected characteristic being treated differently, either better or worse, from those without the same characteristic. Without the positive action exceptions, taking action that deliberately and overtly advantages those with a particular protected characteristic over those without it would normally be unlawful under the Act.

Permitted 'general' positive action

General positive action involves proportionate actions permitted under the Equality Act 2010 which are designed to enable or encourage people who share a protected characteristic to overcome or minimise a disadvantage connected to that characteristic; meet that group's needs that are different from the needs of people who do not share that characteristic; and/or 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 guidance provides examples including:

Overcoming/minimising disadvantage

• Targeting advertising at specific disadvantaged groups, for example advertising jobs in media outlets which are likely to be accessed by the target group.
• Making a statement in recruitment advertisements that the employer welcomes applications from the target group, for example, "older people are welcome to apply".
• Providing opportunities exclusively to the target group to learn more about particular types of work opportunities with the employer, for example internships or open days.

Meeting different/protected needs

• Providing exclusive training to the target group specifically aimed at meeting particular needs, for example, English language classes for staff whose second language is English.
• Providing support and mentoring, for example, to a member of staff who has undergone gender reassignment.
• Creating a work-based support group for members of staff who share a protected characteristic who may have workplace experiences or needs that are different from those of staff who do not share that characteristic.

Enabling participation

• Setting targets for increasing participation of the targeted group.
• Reserving places on training courses for people with the protected characteristic, for example, in management.
• Targeted networking opportunities, for example in banking.
• Working with local schools and further education colleges, inviting students from groups whose participation in the workplace is disproportionately low to spend a day at the company.
• Providing mentoring.

Implementing positive action lawfully: a checklist for employers

The guidance highlights key considerations for employers when thinking about positive action and a checklist for implementation. These include:

• Why do you want to take the action? An employer will "need some evidence on why action may be needed". This evidence may be available from workforce data or existing data or research. If there is no evidence that any groups are experiencing barriers, positive action should not be used.
• What actions do you want to take and how will this address the barriers identified? Are the actions proportionate to addressing the identified problems? It will be important to understand the difference between positive action and positive discrimination before making decisions, to ensure that any actions taken are lawful.
• How will you take the action? Put in place a proposed timeline for delivering the actions you want to take forward, which should also factor in consulting others on any changes and communicating with staff. Any positive action should also be kept under review – as the guidance reminds employers "if positive action continues indefinitely… it may no longer be proportionate, as the action taken may have already remedied the situation the positive action was initially taken to resolve" and which "could make it unlawful to continue the action".

The guidance reminds employers to refer to the Equality and Human Rights Commission Statutory Code of Practice on Employment which has a dedicated section on positive action.

Next steps

For employers looking at potentially taking some form of positive action under these general provisions, while the guidance stresses the importance of evidence in determining whether any proposed action is appropriate in line with legal requirements, it makes clear that the evidence "does not need to be sophisticated statistical data".

However, any such exercise in considering positive action measures will need to be approached with caution – the guidance expressly acknowledges that using positive action to redress an imbalance for underrepresented groups may have the consequence of relatively worsening the position of other individuals or groups and that there is likely to be some risk of complaints and even legal action against the organisation taking the action. In particular, when thinking about proportionality, consideration should be given to whether there are alternative measures that could achieve the same effect that are less likely to result in the less favourable treatment of other people. It is unlikely that there will be a good justification for taking the action if there are other options available.

Employers are also reminded 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 underrepresented groups for certain roles and which could constitute positive discrimination. The guidance notes 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".

When considering positive action, employers should remember that positive action is entirely voluntary and there is no requirement for an employer to use positive action. However, with the advantages that diversity and inclusion can bring 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 positive action should be considered.

Where positive action measures are adopted following an appropriate analysis of the evidence and circumstances, employers should ensure that such actions are in line with the guidance and code and keep any measures adopted under review to ensure they continue to comply. Given there may be a risk "of complaints and even legal action" the guidance confirms "it is a good idea to get legal advice before decision on a positive action programme based on a protected characteristic".

The guidance also addresses the separate "tie-breaker" 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 in line with legal advice.

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