Positive action is hailed as an important tool in dismantling gender barriers in employment. It is also an underused enabler of widespread equality in the workplace. Richard Isham, Partner and Rebecca Bridgen, Trainee Solicitor at law firm Wedlake Bell, share how businesses can implement positive action to improve diversity an inclusion.

In March, the Equality and Human Rights Commission (“EHRC”) published a report recommending the use of ‘positive action’ as an important tool in dismantling the gender barriers in employment. The report found that many employers have failed to utilise the potential of positive action in tackling gender disadvantages faced at work. The research also suggested its limited use in practice is largely due to a lack of awareness among employers, a lack of confidence in applying positive action measures, and fear that certain actions may drift into the dangerous waters of positive discrimination.

So what exactly is positive action, and how can it be used as a means of promoting this year’s theme for International Women’s Day ‘Balance for Better’?

‘Balance for Better’, is a campaign aimed at creating a more gender-balanced society through continuous global activism. The message is that gender equality is not just beneficial to women, but economically essential for businesses globally.

Indeed, according to a recent study by McKinsey & Company, if full gender parity were reached by 2025, $28 trillion could be added to the global GDP.

While this message is clear, how gender equality can be realised remains the subject of debate – that said, the right of businesses to take positive action is one way forward. 

Equality Act 2010 (“the Act”)

Positive action allows employers to take certain steps to help individuals sharing a protected characteristic .e.g. women overcome workplace disadvantages. Positive action can also be implemented by employers to help alleviate the disproportionate under-representation of those that share a protected characteristic in a particular field of work (e.g. women in technology).

While positive action is permitted under the statute, employers should avoid implementing measures that may result in preferential treatment for those sharing the protected characteristic, or less favourable treatment for those not sharing the protected characteristic. Measures that amount to preferential treatment per se are likely to constitute positive discrimination which is generally prohibited under the Act. 

The Act outlines two types of positive action: general positive action and positive action in recruitment and promotion.

General positive action

General positive action can apply where the employer reasonably considers that:-

1. persons who share a protected characteristic suffer a disadvantage connected to the characteristic;
2. persons who share a protected characteristic have needs that are different from the needs of persons who do not share it; or
3. participation in an activity by persons who share a protected characteristic is disproportionately low.

Where an employer identifies one or more of these concerns, it is permitted to take ‘proportionate’ action relating to the concern(s) identified. An example would be an employer identifying that they have fewer female managers compared to the number of men. As a means of overcoming this perceived gender disadvantage, it may be proportionate to introduce a mentoring system for women or targeted networking opportunities for female staff.

The key to taking general positive action is proportionality. Whether or not a measure is proportionate will depend on: “…the seriousness of the relevant disadvantage, the extremity of need or under-representation and the availability of other means of countering them”. Therefore, before taking positive action, employers should consider first whether there are any alternative measures available which carry less risk of preferential treatment. For example, rather than paying for women to attend management training courses, the employer could, in the first instance, simply reserve spaces for women to attend.

Positive action in recruitment and promotion

Positive action in recruitment and promotion is less common in practice given the difficulties that can arise.

It will apply where an employer reasonably considers that:-

1. persons who share a protected characteristic suffer a disadvantage connected to the characteristic; or
2. participation in an activity by persons who share a protected characteristic is disproportionately low.

It is therefore permissible for an employer to treat a person with a protected characteristic more favourably during recruitment or promotion if it reasonably believes that the representation of employees with the same protected characteristic is disproportionately low in their workplace.

However, this would only be permitted in the following circumstances:-

1. the female candidate is equal in merit to the male candidate (i.e. the positive action would effectively operate to allow the employer to choose the female candidate when all other factors are equal);
2. the employer does not have a ‘blanket’ policy of always treating women more favourably during recruitment or promotion exercises; and
3. taking this type of positive action is a proportionate means of achieving the aim – that is, redressing the imbalance between men and women, by increasing female representation in the employer’s workforce.

The decision in Furlong v Police Constable 2017/18 highlights the difficulties in getting this right. Here, an employer’s recruitment policy designed to increase diversity was deemed discriminatory. The scoring matrix used in the recruitment process was set artificially low, which meant that a larger number of candidates were considered to be as qualified as each other despite having very different capabilities. Therefore, in reality, the candidates were not of ‘equal merit’ under the Act.

What employers can do

The EHRC report recommends the following action for employers:-

• to use objective, formal recruitment practices that focus on ability rather than networks;
• to utilise blind recruitment (i.e. removing names or gender from job applications);
• provide training to interviewers on unconscious bias and promoting diversity;
• outreach to encourage women to apply for a particular role;
• to use targets to drive up and provide focus on resolving gender disparity; and
• make more use of the tiebreaker provision shown (in point 1) above.

Employers should also avoid adopting recruitment policies that favour candidates sharing a protected characteristic, where possible. Any recruitment policy implemented should only be temporary or it will run the risk of being disproportionate. Moreover, it is crucial that when using positive action through recruitment, the scoring criteria set to establish ‘equal merit’ should be robust.

Inevitably there are certain risks involved when employers take positive action. However, the risk of employers losing out on top talent based on (often subconscious) gender perceptions is far greater. Given the steep hill still to climb before gender parity is realised, businesses should try to promote women in the workplace using positive action as appropriate, and thereby strive to achieve the goal of balance for better.

>See also: Lawyers warn ‘one size fits all’ fix is not an elixir for workplace stress