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Can the Equality Act's 'Positive Action' Exception Help the Boardrooms "Endangered White Males"?

Tesco chairman John Allen caused a media storm earlier this year when he joked that white men have become an “endangered species” at the top of British business. Mr Allen, who reportedly earns £650,000 per year, is one of nine men who sit on Tesco’s executive board, alongside three women. There are no full-time female executives on Tesco's board.

“If you are female and from an ethnic background and preferably both, then you are in an extremely propitious period” he added.

So is that true? Leaving social and political comment aside, this blog reviews whether our equality laws can actually assist under-represented groups in the workplace. The short answer is yes, if employers choose to use it.

The Law

Positive discrimination is unlawful in the UK with the exception of some genuine occupational requirements and measures to offset the disadvantages experienced by disabled people.

"Positive Action", on the other hand, is a further exception which enables employers to take extra steps to assist “protected” groups which are disadvantaged or underrepresented in a particular job. The positive action exception applies to the protected characteristics of age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation.

The positive action provisions in the Equality Act 2010 enable employers to take certain steps to address a disproportionally underrepresented work force without putting themselves at risk of discrimination claims brought by people without the relevant protected characteristic. Private sector employers are not obliged to take positive action under the Equality Act. Public sector employers may have a duty to consider it under the public sector single equality duty.

There are two positive action provisions in the EqA 2010: general positive action (S158) and positive action in recruitment and promotion (S159). The provisions are somewhat complicated because to be lawful the positive action must be targeted to overcome disadvantages (not always easy to define) and be a “proportionate means of achieving a legitimate aim” (which is always vulnerable to legal challenge). An employer must also not have a blanket policy of favouring one particular group.

Employers who want to implement positive action initiatives (and remember you don’t have to) should consult the guidance and examples from the Equality and Human Rights Commission’s Code. Here are some extracts:

General positive action: some examples from the EHRC Code

  • An employer's monitoring data on training shows that their workers over the age of 60 are more likely to request training in advanced IT skills compared with workers outside this age group. The employer could provide training sessions primarily targeted at this group of workers. (Paragraph 12.18.)
  • Setting targets for increasing participation of the targeted group.
  • Providing bursaries to obtain qualifications in a profession for members of the group whose participation in that profession might be disproportionately low.
  • Reserving places on training courses for people with the protected characteristic, for example, in management. • Working with local schools and FE colleges, inviting students from groups whose participation in the workplace is disproportionately low to spend a day at the company.

Positive action in recruitment and promotion

Section 159 allows an employer to “treat a person (A) more favourably in connection with recruitment or promotion than another person (B) because A has the protected characteristic but B does not". However, this is only allowed where A is as qualified as B to be recruited or promoted.

The supplement to the EHRC Code states that:

"This provision essentially allows positive action in recruitment and promotion in relation to a "tie-breaker". It allows an employer faced with making a choice between two or more candidates who are of equal merit to take into consideration whether one is from a group that is disproportionately under-represented or otherwise disadvantaged within the workforce." (page 8).

Employers beware! There is the potential for confusion concerning how the employer determines that "A is as qualified as B" for the purposes of section 159. Recruitment and promotion are nearly always based on more than just formal qualifications. In most cases, unless there is a clear winner, the final decision is reached by a partially-subjective process of weighing up each candidate's qualifications, experience, and other strengths and weaknesses The EHRC Code recognises this and considers what is meant by "equal merit", advising that employers should establish a set of criteria against which candidates will be assessed, which could take into account "a candidate's overall ability, competence and professional experience, together with any other qualities required to carry out a particular job.”

No policy of more favourable treatment

Finally a blanket policy on treating persons of a disadvantaged group more favourably than others regardless of merit is not allowed. The EHRC Code states that employers should not allow positive action to continue indefinitely, without any review, as the positive action may no longer be appropriate, as the action already taken may have remedied the situation.

Now that is a relief. Once boardrooms and top tier management are overrepresented by women and BME employees the endangered white male will be able to rely on employers using positive action to help him overcome his disadvantages.

Article written by Deborah Scales, Employment Solicitor.

Please contact our employment solicitors on 0808 168 5550 or on to discuss how these issues might affect you or your business.

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