1 Introduction
1.1 Who should read this practice note?
All those involved in making decisions on recruitment and promotion; solicitors specialising in employment and discrimination law.
1.2 What is the issue?
On 6 April 2011 the new positive action provisions on recruitment and promotion contained in the Equality Act 2010 (the act) came into force. Law firms, as employers, who want to make use of these voluntary provisions will be affected.
This practice note:
- summarises the law relating to positive action
- explains what the new provisions mean for practitioners
- provides examples of how and when the provisions could be used.
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2 What is positive action?
Positive action is one way of trying to counteract deep-rooted or historic disadvantage by providing under-represented or disadvantaged groups with help to ensure they have the same chances as others.
The new recruitment and promotion provisions allow employers, when deciding between two equally qualified candidates, to choose a candidate from an under-represented or disadvantaged group.
Positive action is not entirely new. The provisions for recruitment and promotion (see section 3 The tipping factor below) are new but the general provisions discussed at 2.3 What does the act say about positive action? below have been in force since 1 October 2010 and reflect previous anti-discrimination legislation.
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2.1 What is not positive action?
Positive action is not:
- compulsory. The legislation makes clear that if employers choose to take positive action measures, it will not be unlawful but there is no requirement to do so.
- positive discrimination or quotas. These are unlawful. The new recruitment and promotion provisions still allow employers to select the most qualified applicant for the job so recruitment/promotion is still on merit.
- the same as making reasonable adjustments for disabled clients and employees. It is not unlawful to treat a disabled person more favourably.
- the same as a genuine occupational requirement. For example, if a domestic violence refuge for women required only women counsellors, it would not be acting unlawfully to make clear that only women could apply for the role.
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2.2 What are 'protected characteristics'?
The act consolidates previous anti-discrimination legislation into a single statute. It provides certain rights against discrimination based on a protected characteristic.
These protected characteristics are:
- age
- gender and gender reassignment
- pregnancy and maternity
- marriage and civil partnership
- sexual orientation
- disability
- religion or belief (including a lack of religion or belief)
- race (including colour, nationality and ethnic or national origin).
For further information on protected characteristics and the Equality Act 2010 generally, see the Law Society's practice note on the Equality Act 2010 in 5.3 Further products and support.
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2.3 What does the act say about positive action?
On 1 October 2010 'general' positive action provisions (which largely reflected those found in earlier legislation) came into force. These can be found in section 158.
They apply where an employer reasonably thinks that those who share a protected characteristic have specific needs, suffer a disadvantage or are under-represented.
In those circumstances, the employer can take action so long as it is 'a proportionate means of achieving the aim of':
- enabling or encouraging persons who share the protected characteristic to overcome or minimise the disadvantage
- meeting the needs it identified that those with a protected characteristic share
- enabling or encouraging those who share a protected characteristic to share in an activity.
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2.4 Examples of general positive action
- Providing a mentoring scheme for women associates only, having identified that fewer women make partner.
- Stating on the traineeship application form that the firm welcomes applications from women and ethnic minority candidates where those are under-represented.
- Establishing a bursary to support students from an ethnic minority background where those students are under-represented.
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3 The tipping factor
Since 6 April 2011 employers can treat a candidate from a disadvantaged or under-represented group more favourably than another so long as both candidates are 'as qualified' as each other.
The Equality and Human Rights Commission (EHRC) has called this the 'tipping factor'. These new provisions are found in section 159.
A firm can only take this positive action only if:
- the person from the disadvantaged or under-represented group is 'as qualified' as the other candidate and
- he firm does not have a policy of treating those with the protected characteristic more favourably in connection with recruitment/promotion (ie the firm selects on merit and does not routinely prefer one group over another) and
- taking the action in question is a proportionate means of achieving a legitimate aim.
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3.1 Examples of the tipping factor
The tipping factor could apply where:
- a law firm has to choose between two equally good male candidates for a traineeship. Both have solid 2:1s from leading universities and have completed work experience at the firm. The firm decides to offer the traineeship to the black candidate as black employees are under-represented in the firm.
- A family law department has a NQ vacancy. The entire department is female. Two trainees interview for the role. Both have spent six months working in the family team and have had excellent appraisals throughout their traineeship. They both completed their LPCs at the College of Law and hold the same class of degree. The department decides to recruit the male trainee as men are under-represented in the family law team.
- A regional firm wants to recruit a banking law partner. Two men make the shortlist. Both are senior associates in City firms and have solid reputations. One is Muslim, the other Christian. There are no Muslim employees in the firm despite there being a large Muslim community in the local area. The firm decides to offer the role to the Muslim candidate.
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3.2 How do you know if a group is under-represented or disadvantaged?
You must reasonably think that a group of people is under-represented or disadvantaged.
Employee data will certainly be able to tell you how many male/female employees you have and possibly the ethnic make-up of staff.
You may not, however, know the religion or sexual orientation of employees or if an employee is disabled if they have not chosen to share that information.
Some evidence is necessary to demonstrate that your belief is reasonable but the government has said that 'sophisticated statistical data or research is not needed'.
The most sensible way forward is to ensure that the data you do hold is as accurate and up to date as possible and base your view on that. If you do not currently gather this information about your staff, it can help to do so.
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3.3 How do you decide who is 'as qualified'?
The EHRC suggests that the candidates 'would have to have been judged to be equal after [a proper selection process] according to an objective and rigorous assessment of their abilities, skills, experience and personal circumstances'.
The government's guidance talks of candidates being of 'equal merit' and using the protected characteristic as a 'tie-breaker' after having taken into account 'a candidate's overall ability, competence and professional experience together with any relevant formal or academic qualifications as well as any other qualities required to carry out the particular job'.
In practice, however, it is rare to encounter two candidates with the same experience or qualifications and this is especially so for more senior employees. Candidates will often have different but complementary skills. It is, therefore, important to ensure that candidates are assessed as fairly and objectively as possible by:
- thinking carefully about what the role actually requires: two candidates apply for a caseworker vacancy. One is a woman with a law degree and no experience; the other a man with no formal qualifications but two years' experience. Your instinct is to appoint the woman but is there a need for a degree in the role?
- Being careful not to prefer a candidate simply because she most closely resembles the current make-up of the firm so you think she will be the 'better fit'.
- Making sure that you use only objective selection criteria. For example, selecting candidates for a legal helpline on the basis that they can work shifts might be discriminatory for those with childcare responsibilities and could amount to unlawful indirect gender discrimination.
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4 Summary
Positive action is voluntary but it can help firms who want to take steps to become more diverse.
In addition to the general measures, the new recruitment and promotion provisions mean that firms can select candidates from disadvantaged or under-represented groups without fearing that they are acting unlawfully, although firms cannot have a blanket policy of preferring a group of people who share a particular protected characteristic.
The new rules only apply to situations where both candidates are 'as qualified' as each other so they are likely only to be used in a 'tie-break' situation as candidates must be recruited on merit.
As we do not yet know how 'as qualified' will be judged, law firms who want to use these measures are advised to:
- prepare clear and objective criteria to use in selecting candidates
- make sure that only those criteria are used in the recruitment process and that candidates are measured objectively against them fairly at each stage
- keep a detailed record of the scores given against each criterion and why
- if you want to use a preference in a tie-break situation, make sure that you have up to date and accurate statistics on your staff/profession profile so that you can check whether a group is disadvantaged or under-represented.
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5 More information
5.1 Professional conduct
The following sections of the Solicitors' Code of Conduct 2007 are relevant to this issue:
5.2 Legal and other requirements
5.3 Further products and support
5.3.1 Practice Advice Line
The Law Society provides support for solicitors on a wide range of areas of practice. Practice Advice can be contacted on 0870 606 2522 from 09:00 to 17:00 on weekdays.
5.3.2 Other practice notes
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5.4 Status of this practice note
Practice notes are issued by the Law Society for the use and benefit of its members. They represent the Law Society's view of good practice in a particular area. They are not intended to be the only standard of good practice that solicitors can follow. You are not required to follow them, but doing so will make it easier to account to oversight bodies for your actions.
Practice notes are not legal advice, nor do they necessarily provide a defence to complaints of misconduct or of inadequate professional service. While care has been taken to ensure that they are accurate, up to date and useful, the Law Society will not accept any legal liability in relation to them.
For queries or comments on this practice note contact the Law Society's Practice Advice Service.
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5.5 Terminology in this practice note
Must – a specific requirement in the Solicitor's Code of Conduct or legislation. You must comply, unless there specific exemptions or defences provided for in the code of conduct or relevant legislation.
Should – good practice for most situations in the Law Society's view. If you do not follow this, you must be able to justify to oversight bodies why this is appropriate, either for your practice, or in the particular retainer.
May – a non-exhaustive list of options for meeting your obligations. Which option you choose is determined by the risk profile of the individual practice, client or retainer. You must be able to justify why this was an appropriate option to oversight bodies.
EHRC – Equality and Human Rights Commission
5.6 Acknowledgements
This practice note was drafted by members of the Law Society's Employment Law Committee.
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