Rules About Positive Action in the Workplace in England and Wales

In England, there are certain ‘protected characteristics’ that you cannot discriminate against, including a person’s race, sex and disability. However, as an employer, there may be times when you need to make a decision based on one of these characteristics, like taking positive action towards your current workforce or those you may recruit. Such a decision can increase your business productivity and help achieve a more diverse and representative workforce.

Positive action in the workplace can be lawful, but it is essential to understand your legal obligations. If not, you risk unlawfully making a decision on a protected characteristic and opening yourself up to a discrimination claim. This article will explain the rules about positive action in the workplace and how an employer might carry out this task.

What is Positive Action?

Positive action is where you assist an under-represented group or a disadvantaged group. These groups have a ‘protected characteristic’ and are also called protected groups. Accordingly, protected characteristics receive legal safeguards against discrimination.

There are nine characteristics that the law protects against discrimination. In England, these protected characteristics are:

• race;
• sex;
• disabilities;
• maternity;
• religion or belief;
• sexual orientation;
• age;
• gender reassignment; and
• marriage and civil partnership.

Likewise, you can take action toward your current workforce or your potential workforce through recruitment. Importantly, you must ensure you are not causing harm, such as discriminating against other groups of people in your workforce when doing so. For example, you must avoid choosing a person for a job role solely because they have a protected characteristic and are from an underrepresented group. It is more important to base your decision on the merits of the candidates.

What Are the Rules on Positive Action?

As an employer, you can legally carry out positive action on your staff or job applicants if:

• you reasonably believe that their protected characteristic could put them at a disadvantage;
• in your business, you reasonably believe that they are underrepresented as a result of their protected characteristic; or
• they have particular needs concerning their protected characteristics.

However, you must demonstrate that you are not discriminating against another person or group of people when taking action.

Notably, you must demonstrate that you reasonably believe a group is underrepresented or at a disadvantage due to their protected characteristic. Therefore, you need to have some evidence to back up your view. This does not have to be highly detailed data but could, for example, be a scan of your worker profiles.

Some types of positive action include:

• helping disadvantaged or underrepresented groups within your workforce to make the workplace fairer; and
• taking specific actions to promote inclusion when recruiting potential workers.

How Might an Employer Carry Out Positive Action?

You might carry out positive action in your workplace and recruitment processes in various ways, like:

• welcoming applications from those who are part of an underrepresented group, such as ethnic minority groups;
• boosting females in your senior workforce by allowing them to attend training that prepares them for promotion; and
• resolving ‘tie-breakers’, such as where two job applicants are both suitable for a role on their merits, but as one is from an underrepresented group, you may choose them.

Key Takeaways

As an employer, it is unlawful for you to discriminate against your staff based on a protected characteristic such as race, sexual orientation or gender reassignment. However, there are instances where you can legally make decisions concerning your existing or potential workforce based on their protected characteristics. Positive action is one example of this. It is where you try to assist an underrepresented or disadvantaged group. 

Notably, there are specific rules on how and when you may carry out positive action, which you must abide by. For example, you need to reasonably believe that their protected characteristic puts them at a disadvantage. You also need to be able to demonstrate this with evidence. Further, ensure that you are not discriminating against other groups when doing this.

If you need help with the rules about positive action in the workplace in England and Wales, our experienced employment lawyers can assist as part of our LegalVision membership. You will have unlimited access to lawyers to answer your questions and draft and review your documents for a low monthly fee. Call us today on 0808 196 8584 or visit our membership page.

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