Do you want a more diverse workforce? New government guidance explains how to take positive action and stay on the right side of the law

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 people from different ethnic backgrounds, often out perform their competitors. That's because they bring in different perspectives, experiences, and backgrounds, which can help to generate new ideas, solve problems, and identify opportunities that they may not have considered. 

The law

It is unlawful to positively discriminate in favour of one person (or group of people) over another. You can, however, take 'positive action' to help individuals with a protected characteristic who are either disadvantaged or under-represented in your workplace. These rights are set out in the Equality Act 2010. Section 158, gives employers the scope to take general positive action, and under section 159 to take positive action when recruiting and promoting individuals. These provisions are subject to specific rules which you must follow to avoid discrimination claims. 

New guidance

These legal rules are complex. The government has produced new guidance to help employers understand what they can and can't do to attract, retain and promote groups which are unrepresented in their organisation. 

The guidance explains: 

• the difference between taking 'positive action' which can be lawful, and positive discrimination which is not
• the groups of people this applies to
• how to decide if you have a legal basis to implement a positive action programme and the evidence you need to support it
• the specific rules that apply to recruitment and promotion.

Statutory Codes of Practice

The Equality and Human Rights Commission has a Statutory Code of Practice and a Supplementary Code of Practice (which aren't new). These contain sections on 'positive duty' and provide some useful examples to help to explain the law. The new guidance also refers to these.

Using the positive duty to promote or recruit individuals

This is more complicated than you might expect, and you'll need to jump through a series of hoops first. These are: 

• You must reasonably believe that individuals with one or more protected characteristic (age, sex, sexual orientation, disability, religion or belief, gender reassignment etc) are disadvantaged or are under-represented in your workplace; and 
• The steps you wish to take must aim to overcome that disadvantage or under-representation. 

If you can establish this, you can select someone with a protected characteristic over someone else who doesn’t share it provided they are 'as qualified' as the other candidate and you can demonstrate that your actions are proportionate. In a scoring exercise, they must have exactly the same score as the highest other candidate before you can select them. It's a legally risky strategy and is an extremely slow way to bring about organisational change.

Taking general positive action 

It is far less risky to rely on the general positive duty to help, encourage and support individuals from under-represented groups and is likely to have an impact much more quickly than adopting the above method. You still have to reasonably believe that persons who share a particular characteristic are disadvantaged, have different needs to those who don’t share that characteristic or are under-represented in your workplace and you will need evidence to support those conclusions. You must also be able to justify any action you take and regularly evaluate your efforts to see if they are successful. The best way to do this is to agree an action plan.

The Equality Act does not limit the types of action you can take, and options include:

• setting targets for increasing participation of the targeted group
• providing bursaries to obtain qualifications those groups
• raising awareness of job opportunities via outreach work, networking and advertising
• reserving places on training courses to enable under-represented individuals to progress
• providing mentoring; and
• working with local schools and FE colleges and inviting students from groups whose participation in the workplace is disproportionately low to spend a day in your business. 

You can go slightly further to appoint or promote a disabled candidates because you are under a separate legal duty to take such steps as are reasonable in terms of adjustments to remove any disadvantage suffered by disabled people. This might include accepting information in an accessible way, such as large print or in audio format for candidates that have sight impairments. Some employers also operate a guaranteed interview scheme, under which they agree to interview all disabled applicants meeting the minimum requirements for the job. This does not, of course, mean that disabled candidates should be appointed ahead of other more qualified staff.

How to decide whether to take positive action

The government's guidance provides a helpful checklist to help you to decide whether to take action to improve the diversity of your workforce. We've also produced a guide to help you reach a decision about this which you can access here. 

Our newsletters

We publish monthly employment newsletters. If you'd like to be added to the mailing list, please let me know. 

Our fixed price employment law service

We also have a fixed price employment law service. Please contact Gordon Rodham if you'd like to find out how we can help you avoid these sorts of problems with our fixed-fee annual retainer, or flexible discounted bank of hours service.