The new guidance on positive action is part of the government’s ongoing Inclusive Britain strategy and is intended to support employers to create opportunities for underrepresented groups within their workforce. Although part of the Inclusive Britain initiative, the guidance is not just about measures to improve ethnic diversity - it covers all protected characteristics including sex, sexual orientation, age and ethnicity. As we explore in this article, the guidance clarifies a few key points but largely repeats earlier publications and does not address many of the issues that arise in practice.

What is positive action in the workplace?

Positive action in the workplace involves taking targeted steps to address underrepresentation or disadvantage experienced by people with characteristics protected by the Equality Act 2010. It generated mainstream interest following the introduction of gender pay gap reporting, as companies looked for ways in which they could close stubborn gender pay gaps. More recently, companies have launched positive action programmes focussed on improving ethnic diversity within their workforces. If ethnicity pay gap reporting becomes more widespread, these programmes are likely to grow (we’ve written about the new ethnicity pay gap reporting guidance here).

There are two types of lawful positive action in British employment law:

• General positive action to help level the playing field for people in protected groups.

• The tie-breaker provision which applies to recruitment and promotion decisions and allows employers to give preferential treatment to one candidate over another if they could do the job equally well, this is a proportionate way of addressing the underrepresentation or disadvantage and there’s no routine policy of favourable treatment.

You can read more about the legal framework and how it operates in our inbrief guide to positive action in the workplace.

What does the government positive action guidance say?

The latest government guidance continues to emphasise that positive action is entirely voluntary. It is not intended to put pressure on employers to adopt positive action measures, but it is intended to help employers who want to do so. However, the new guidance mostly repeats existing guidance from the Equality and Human Rights Commission (EHRC) in their statutory employment code and supplement. It expands on the EHRC code (helpfully or unhelpfully) in just a few areas:

• The new guidance says that positive action should not be confused with the US concept of affirmative action, especially when it comes to the use of quotas. This is a reference to programmes such as the Rooney rule which started out as a US National Football League policy involving an interview quota for ethnic minority candidates, but has since expanded to other industries and initiatives in the US and elsewhere. The new guidance warns that “when considering taking positive action, you should be careful not to use American sources about affirmative action, as they do not set out the legal position in this country”.

• Doubling down on that message, the guidance explicitly warns against setting interview quotas (e.g. stipulating that a percentage of candidates shortlisted for interview must be women or ethnic minorities). It says this could constitute positive discrimination as employers may need to put forward less qualified candidates for hiring or promotion opportunities to meet any minimum restrictions. This reflects the position previously taken by the EHRC in various publications, although it wasn’t in the code and is arguably more restrictive than EU law requires. The guidance makes it very difficult to mandate diverse shortlists in the UK now. Targets, as opposed to hard quotas, are different and legally safer.

• The guidance also comments on diverse selection panels. It says that “reserving places on interview panels for people from protected groups could constitute direct discrimination” – rather unhelpfully, in our view, because employers do not tend to “reserve places” for “candidates” for an interview panel in the way the guidance suggests. Employers should note, however, that there is mixed evidence for the effectiveness of diverse selection panels.

• The new guidance addresses intersectionality, which was not dealt with in the EHRC code. It says that employers taking an intersectional approach need to consider the positive action criteria against each characteristic. For example, measures to increase the representation of older men would involve considering how the requirements are met for the protected characteristic of sex and then, in a separate exercise, considering the protected characteristic of age.

• The guidance also aims to clarify some issues with the tie-breaker provision. One of the oddities with the tie-breaker regime is that employers are unable to rely on it if they have a policy of automatically granting a preference. This implies that employers should avoid any kind of consistent policy stance. The guidance helpfully takes the view that it is OK to have a policy. But all candidates have to be considered on their merits – you cannot routinely or automatically just offer the position to the person with the “right” protected characteristic.

• Employers have never needed sophisticated data or detailed research to justify their view that a particular group is disadvantaged or underrepresented but the guidance helpfully gives a new example of a firm deciding that there is a disproportionately low number of LGBT employees in senior management based on the results of an employee engagement exercise (without hard data).

• Although not new, the reminder that any type of positive action must be proportionate is useful. It emphasises that employers need to consider alternative measures before opting for positive action.

Areas left unresolved by the government positive action guidance

The guidance does not satisfactorily address many of the issues that we advise on in practice, including:

• Close calls. Most employers do not use the tie-breaker provisions because of the need to conclude that two candidates could do a job equally well, and the fact that an unsuccessful candidate is likely to challenge that conclusion, especially when they’ve come very close to being appointed but lost out because of their gender or ethnicity etc. The new guidance does not provide much help on this equal merit point. In the section on artificially low thresholds it says “if the pass mark in an assessment centre is set at 70% and one candidate scores 71% and another scores 91%, treating those candidates as being of equal merit may be vulnerable to legal challenge” – this is based on the facts of a case called Furlong (explained in the guidance) but in reality most employers tend to be dealing with closer calls and less exact scoring systems.

• Internships. This comes up repeatedly as an issue in practice. The current EHRC code cites internships (along with open days) as an example of learning or work experience opportunities that can be reserved for a target group. But these days internships are often more than just work experience, in fact they are sometimes entry-level employment contracts. The new guidance simply repeats the wording of the code on this issue, without getting into the sort of distinctions on which we regularly advise in practice. This is unhelpful, especially as employers increasingly want to “do the right thing” with interns and make sure they are paid properly and given a chance to try meaningful work.

• Modern approaches to recruitment. The guidance doesn’t deal at all with many strategies we see in practice, for example the use of referral bonuses and specialist recruiters to improve diversity.

• More general levelling up measures. The guidance doesn’t cover levelling up measures that are not focussed on groups with specific legal protection – for example, people from certain socio-economic backgrounds, care leavers and ex-offenders. Generally speaking, these are legally “safer” groups to target because positive action in favour of such groups does not disadvantage other legally-protected groups. Initiatives targeting groups that fall outside of Equality Act protection have become more common in recent years and it would have been helpful if the guidance had addressed this.

Conclusions

By largely repeating the existing (dated) EHRC codes, this guidance feels rather stale and does not show any appetite for trying to allow the sort of dynamic programmes that business want to adopt to accelerate change. That is a missed opportunity and suggests that government is falling behind business on this issue. Now that the UK has left the EU, the government has an opportunity to reform this area of the law. We’ve argued that positive action is ripe for review as part of the post-Brexit reform programme but the current government, however, seems unlikely to want to take this forward.