Employment e-Brief – Positive Action provisions come into force

Wednesday 6th April 2011

The “positive action” provisions of the Equality Act 2010 come into force today (6 April 2011). These changes allow you to take into account one of the nine protected characteristics when deciding who to recruit or promote. The circumstances where you can do this are proscribed and quite limited.

For example you would need to establish that people with that protected characteristic face particular difficulties in the workplace, or are disproportionately under-represented in your workforce as a whole or for a particular vacancy. In these circumstances you can choose to use the fact that a candidate has a protected characteristic as a “tie-breaker” when determining which one to appoint, all other things being equal.

This may be of limited interest to our clients given that it introduces further risks of potential discrimination claims from applicants who may not share this characteristic, and the onus is put clearly on the employer to show justification for positive action.

The Government Equality Office has published two useful guides for employers setting out the guidance on positive action with some helpful examples.

  • To access “Equality Act 2010: A Step by Step Practical Guide to Using Positive Action when making appointments” click here
  • To access “Equality Act 2010: What Do I Need to Know? A Quick Start Guide to Using Positive Action in Recruitment and Selection” click here

Codes of Practice have statutory force

In a further development the Equality and Human Rights Commission’s statutory Codes of Practice on the Equality Act 2010 will finally be in force from today (6 April 2011). The Codes of Practice on Employment and Equal Pay will be of most relevance to clients.

A Revocation Order has now been laid before Parliament which will revoke the various statutory codes of practice which deal with the pre-October 2010 discrimination legislation. From today (6 April 2011), the new Codes of Practice will be brought into force by the Equality Act 2010 Codes of Practice (Services, Public Functions and Associations, Employment and Equal Pay) Order 2011.

Other Codes of Practice are in the drafting phase and have not yet been brought into force, but are expected to be laid before Parliament in summer 2011.

In the meantime, the new Codes are available on the EHRC website here.

For more information about these, or any other employment matter, please contact a member of the employment team.