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Be ‘positive', not discriminatory

03 July 2009
Be ‘positive', not discriminatory

Employers will be allowed to give priority to a job candidate from an under-represented minority when the Equality Bill becomes law next year. But only when they are chosen from equally qualified hopefuls, explains Fiona Killingworth


I have heard about the Equality Bill and reference that has been made in the media to "positive discrimination". I'm not sure what the implications will be for my business, particularly during the recruitment process.

For example, I have recently advertised a new role, and the number and quality of applications received was exceptional. I have short-listed and interviewed for the post and two candidates really stand out. One candidate is a man and the other a woman, they both seem well suited to the post, but I would really like to attract more women into an otherwise male dominated team. In light of the above, to whom should I give the job and what's the decision process I need to go through?


The Equality Bill, published on 27 April, is planned to take effect from autumn 2010. The Bill aims to bring together various discrimination legislation currently in force in Great Britain, to create a single Act covering all forms of discrimination.

Much of the Bill aims to replicate and simplify existing discrimination and equal pay law, but there are other significant changes. In particular, the Bill is intended to broaden the scope for employers to use "positive action" to appoint a person from an under-represented group, provided candidates are equally suitable. The Bill also allows employers to offer training to, or encouraging job applications from, groups which are under-represented in a particular job.

An employer can, therefore, take a protected characteristic into consideration when deciding whom to recruit or promote, where people having this characteristic are at a disadvantage or are under-represented. This can include age, disability, gender reassignment, marriage, civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation.


It is important to note that, at the short-listing and selection stage, the person or persons selected are chosen on the basis of merit and their ability to carry out the job.

When appointing a person to the role, the most (equal) suitable person must get the job, as the merit principle continues to apply. You must, therefore, give careful consideration as to whether both candidates are actually equal. If both candidates are equal, you can then consider whether the applicant in question has a protected characteristic.

Assuming that the person does have a protected characteristic, it is important to review whether they are at a disadvantage or are under-represented. It is then the employer's decision as to whom to recruit to the role. You should be aware that positive action is entirely optional and there are no quotas that need to be adhered to.


Positive action can also include specific training courses for particular under-represented groups to ensure that they can compete with their peers on a level playing field.


You may choose to include some form of positive action in your future recruitment campaigns or focus on particular publications or jobs websites to ensure that your recruitment advertising is accurately targeted and effective.

Organisations that have a large under-representation of a particular group at certain levels can add an additional line when advertising which stipulates that they welcome applicants from particular groups, as they are under-represented within the organisation. This is designed to encourage applicants from traditionally under-represented groups.

It is important that employees who are involved in the recruitment process understand the difference between positive action and positive discrimination and how positive action may be used in the selection of a suitably qualified candidate.


Positive action is a limited exception to the prohibition on discrimination in employment, as it allows employers to choose between two equally-qualified candidates by selecting one from an under-represented minority. It does not allow any positive discrimination in the actual recruitment of employees. Positive discrimination - employing someone because of a characteristic regardless of merit - will remain illegal.


Fiona Killingworth, employment solicitor, Bevan Brittan
Tel: 0870 194 7924

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