How does the Equality Act affect recruitment?

Employers’ anti-discrimination duties have changed significantly under the Equality Act, and any organisations lifting recruitment freezes need to be thinking about what this means in practice.

The government has confirmed that the act’s specific “positive action” powers for recruitment and promotion will be in force from this April. But this still leaves significant uncertainty over employers’ responsibilities in this area.

Since October 2010, when the general positive action provisions were introduced, employers have been allowed to encourage people with a particular characteristic to join and progress in their organisations, provided the measures they took were proportionate, and the employer’s perception of this group as disadvantaged was reasonable. If these powers were applied to recruitment it would allow employers, for example, to target job adverts or training purely at female candidates, where women were perceived to be under-represented. These measures may also have been permissible before the act, as the previous positive action provisions did apply to targeted training and recruitment opportunities.

But the act’s specific “positive action” provisions apply exclusively to recruitment and promotion. They allow employers choosing between two equally qualified candidates to give preference to an applicant with a protected characteristic whom they reasonably believe is disadvantaged or under-represented at work.

The problem is that the act seems to be drafted to allow preferential treatment only in the context of recruitment and promotion decisions, and not general attempts by firms to correct imbalances. So employers may be at risk if they take the previously permissible step of targeted job advertising because it falls outside the act’s scope. Firms have to walk a fine line between positive action, which is permitted, and positive discrimination, which is not.

The positive action provisions are voluntary and until we have guidance in key areas – such as exactly what the terms “equally qualified” and “under-represented” mean – firms should exercise caution in using them.

The act also extends protection from indirect discrimination. So individuals could bring claims on the basis of a job advert without even applying for the job. Employers should tread carefully – for example, asking for “energetic” candidates may discriminate against older applicants.

But, as with the previous law, it will not be possible for serial litigants to succeed in multiple spurious claims, where they have no intention of taking the job.

Source People Management