December 2020 - Positive action v positive discrimination in recruitment

In the wake of Black Lives Matter, we have had enquiries from members wanting to know what positive steps they can take to ensure their organisations are as diverse and representative of their communities as possible. Striving for diversity is essential and, of course, promoting diversity often widens the pool of people you recruit from; giving you access to talented, skilled, and experienced people who your traditional recruitment processes might not have reached. It is, though, also important to be aware of the difference between “positive action” in recruitment, which is allowed, and “positive discrimination”, which, like any other type of discrimination, is illegal.

What is positive action and how might it work in our sector?

Positive action means measures taken to try to alleviate disadvantage or under-representation experienced by those with any of the “protected characteristics” defined in the Equality Act 2010, i.e:
Age, disability, gender reassignment, race, religion or belief, sex, sexual orientation, marriage and civil partnership, and pregnancy and maternity

The Equality & Human Rights Commission gives some examples of positive action that are legal, these include:-
• Placing job adverts to target particular groups, to increase the number of applicants from that group.
• Including statements in job adverts to encourage applications from under-represented groups, such as ‘we welcome female applicants’.
• Offering shadowing or mentoring to groups with particular needs.
• Hosting an open day specifically for under-represented groups to encourage them to get into a particular field.


• Cast your net widely. Think beyond where you usually advertise, if you do what you always do you’ll get what you’ve always gotten, they do say. Ask people of colour, people with disabilities, the gender-neutral and trans communities where they might look for jobs where they would feel welcome and comfortable.
• Make it clear that you particularly welcome applications from sections of the community that are currently under-represented in your organisation. You can state the protected characteristics you mean, what you cannot say is that post is only open to people with those protected characteristic(s).
• There is an exception, but it is a rare one and not clearly defined in the Act. This is where a protected characteristic is a “genuine occupational requirement”. We’d suggest you have a chat with ITC first if you are planning to use this, for example when casting a role that is written for someone of a specified racial background.

Application Process

First impressions: When drafting person specifications for a post, double check that the “essentials” you specify really are essentials, not extras that might mean you eliminate otherwise qualified candidates way too early. For example insisting on a certain second language could discriminate on grounds of race; if you were educated in the UK your second language will almost certainly be French, but that’s not the case everywhere. Being over rigid on working days and times may discriminate on grounds of religion as not everyone’s day of rest is Sunday and some religions begin high days, holidays and days of rest at sunset not sunrise. Being rigid on hours of work may also deter those with childcare commitments. Since the majority who would be affected are still women this would be discriminating on grounds of gender. If you require qualifications or experience that imply a certain amount of time in a role or that will have required time spent studying after school leaving age, you may be discriminating on grounds of age. Make it clear that you are open to proposals for part time work/job-sharing.

How to apply: Provide an application form, since this provides a level playing field, by giving all applicants the chance to answer the same questions. It makes it much easier for you too, as you will be comparing like with like in format and responses to questions.

Applying: Offer alternative application processes for those who might have trouble with a written form for any reason. An audio recording is a viable option, though be aware that hearing an accent or speech issues may spark unconscious prejudice. We’ve heard about some people suggesting video recordings recently, there’s a danger in seeing a candidate in advance may cause unconscious bias because of perceived protected characteristics. Asking candidates to include photos in any sort of application is generally also an unwise idea for these reasons.

Guaranteed interviews

One question that has come up several times recently is whether the offer of a guaranteed interview to disabled candidates who meet the essential criteria on a person specification can be extended to those with other protected characteristics. The answer is that this is not legal. The reason for this is that the only cases where questions can be asked about a protected characteristic during the application process are in certain circumstances relating to disability/health issues. Disabled applicants are the only ones who can “self-declare” a protected characteristic when they make their application and if you are making this interview offer some may choose to do this when they would not otherwise do so. It is not legal to take this information from monitoring forms, which should be anonymous, and which should be stored separately from application forms.

Interview Location

Be willing to adapt the environment to enable access. Relocate from your usual space if it would challenge those with mobility issues, find out what someone Deaf/deafened or with partial hearing needs to hear fully, dim down the lights for someone with epilepsy.
Provide an interpreter, for example for a candidate who communicates using BSL.
Time the interview to accommodate candidates’ need, candidates may have a condition that causes tiredness at certain times, they may need to take medication or to eat at specific times, or they may have difficulty using public transport during rush hour. They may also have family obligations or a religious commitment .
If using assessment test papers, provide alternative formats such as audio, Braille or large print and allow the candidate to answer using an alternative method, for example verbally rather than in writing; consider allowing candidates additional time to complete selection tests if they have dyslexia or other learning difficulties.

Favouring a candidate at the final stage of the application process

The Equality Act does allow you to favour a candidate from an under-represented group at the final stage of a recruitment or promotion process. If you have reached this stage and have just two candidates who are as qualified as each other you can select one candidate over the other because they have a protected characteristic that you “reasonably think” means they suffer a disadvantage. The disadvantage can be a general one, e.g: there are disproportionately few performers in your company of Black or Asian origin. But you cannot have a general policy to always favour people with this protected characteristic.