Many organisations recognise that their workforces are not as diverse as they could be. Research shows that businesses with a healthy balance of men and women and those with a good mix of ethnic backgrounds often out perform their competitors.

But how do you attract staff who are unrepresented in your business? Can you simply restrict applications and accept only those from target minority groups?

The laws about discrimination are set out in the Equality Act 2010. Employers can take positive steps to redress under-representation in their workforces but cannot positively discriminate in favour of a particular protected group or groups. In addition, specific rules apply to recruitment and promotion.

Positive action

If you are a private employer you are not obliged to take positive action, but if you wish to reduce under representation in your business, you must follow strict rules. To explain this, let’s assume that your business wants to have more women in senior roles. You will only be able to take positive action to encourage women if one of the following three grounds applies:

 1.  Women are disadvantaged in some way which results in fewer employment opportunities at  this level. You don’t usually need sophisticated statistical data or research and could instead look at the numbers of senior leaders in your business. To redress this you could consider targeting advertising via media outlets likely to be accessed by women; including a statement in advertisements encouraging applications from women, providing training or work placements and structuring the remuneration package so that anti-social hours and standby payments do not disadvantage women. 

2.  Women have different needs not shared by other groups. This does not mean that their needs have to be totally unique though. To redress this, you might provide training, offer support or mentoring, adopt programmes to encourage women back to work after family leave or offer childcare voucher schemes. 

3.  There are a disproportionately low number of women in senior roles. You will need reliable evidence to demonstrate this that compares your business with national, local or industry specific data. To redress this, you might set targets for increasing the numbers of women to senior roles, providing bursaries to help women obtain professional qualifications necessary to undertake these roles, reserving places on training courses, targeting networking opportunities and mentoring women. It might also be sensible to roll out training to your managers on unconscious bias to help them identify and tackle their own biases. 

Any action you take must be proportionate. This means that it shouldn’t go any further than necessary to overcome or reduce the disadvantage/under representation. In other words, if there is another less discriminatory way to achieve the same objective, you should take it. This exercise involves weighing up the seriousness of the disadvantage to women against the impact on men.

Recruitment and promotion

Special rules apply to recruitment and promotion where an employer reasonably thinks that women (to continue with that example) suffer a disadvantage or are underrepresented. These replicate grounds 1 and 3 set out above.

However, you cannot simply appoint or promote a woman ahead of a man or automatically shortlist her. Instead, you will have to go through your usual recruitment process and it is only if the woman is as qualified as the man that you can chose to select her because of her gender. In other words, there needs to be “tie break” for this exception to apply.

This may not be as straightforward as it sounds. The Equality Act does not define the expression “as qualified as” but the explanatory notes to it, make it clear that this is wider than academic qualifications and should include all other criteria the employer uses to determine the best candidate such as overall ability, competence and their performance at interview.

You do not need to match candidates on a point by point basis but their overall scores should be the same, even if these exceed the pass mark. For example, if you evaluate a male candidate as having scored 95% and a female candidate 61%, the candidates are not “as qualified as” each other even if the pass mark is set at 60 or under. Instead, the superior candidate (in this example the man) must be offered the job.

Any practice, which gives automatic and unconditional preference to women over qualified male candidates, will amount to unlawful direct sex discrimination against the male candidates.

Disabled candidates and employees

You can go much further to appoint or promote a disabled candidate than the provisions explained above. Employers are under a duty to make reasonable adjustments to remove disadvantage suffered by disabled people. This might include shortlisting and interviewing all disabled candidates who meet the minimum requirements for the job or providing additional training which is only available to disabled staff to help get them get promotion-ready.

Using positive action

The uncertainty around what amounts to a “tie break” situation mean that it is fairly easy for employers to cross the line beyond the remit of positive action to impact negatively on another group and result in discrimination claims.

This is probably the reason why many private employers don’t take advantage of the positive action provisions.

However, if you are considering positive action, we recommend you consider these points:

1.  What evidence do you have that the group you wish to encourage is disadvantaged in your workplace? You do not necessarily need sophisticated data but you should have a robust benchmark and more than anecdotal opinions or a one-off review. Keep an audit trail of your conclusions. 

2. What steps do you wish to take? Do they amount to positive action NOT positive discrimination? Have you undertaken an impact assessment to identify the implications? 

3. Are there any other less discriminatory ways of encouraging/promoting this group? If so, you should adopt them. 

4. Before you implement any changes, explain to your workforce what you are doing and the reasons why. It is also sensible to remind staff that the steps you are planning to take are lawful as this should help to allay any resistance or resentment. 

5. Monitor and review the process periodically to make sure that your actions remain proportionate. 

Further information 

If you need any help, please contact our expert: Melanie Stancliffe at melanie.stancliffe@irwinmitchell.com or by telephone 020 7650396