Under s.158 of the Equality Act 2010, it is lawful for an employer to take ‘positive action’. ‘Positive Action’ is any action which is a proportionate means of achieving a legitimate aim of enabling or encouraging persons who share the protected characteristic to overcome or minimise that disadvantage.
Therefore, an employer may treat an applicant or an employee with a protected characteristic more favourably in connection with recruitment or promotion than someone without that characteristic who is as qualified for the role. For example, when choosing between two qualified candidates, an employer may opt to hire a female over a male to promote gender diversity.
Employers must ensure that before committing to positive action they have evidence to show that the targeted group is under-represented within the workforce, or that it is likely to have a particular disadvantage in taking up or doing that type of work.
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