Positive Action
The previous equality legislation allowed organisations to take positive action, particularly related to training, if certain employees or job applicants who shared a particular protected characteristic were suffering a disadvantage, or if their participation in an activity was disproportionately low.
Under the Equality Act 2010, since April 2011, employers are allowed to take a protected characteristic into consideration when considering who to recruit or promote. This right is tightly constrained and would not allow a policy or automatically treating certain job applicants more favourably. The abilities, merits and qualifications of all candidates in a recruitment or promotion exercise must be considered.
If, however, the employer assesses that two candidates are “as qualified as” each other and if the employer has evidence to show that people with a particular protected characteristic are disproportionately unrepresented, the employer can choose to use the fact that a candidate has a protected characteristic as a “tie breaker”.
Pre-employment Health Related Checks
Employers may only ask health-related questions before they have offered an individual a job for the following purposes:
- To decide whether any reasonable adjustments need to be made for the person to have a fair consideration at the selection process
- To decide whether an applicant can carry out a function which is “intrinsic” to the job
- To monitor diversity among people making applications for jobs
- To take positive action to assist disabled people
- To establish that a candidate has a specific disability in the unusual circumstances where the job genuinely requires the job holder to have a disability. An example of this would be if a counselling service for people with mental health conditions required a counsellor who had personal experience of having suffered such a condition. In those circumstances it could ask the person to confirm that they have or have had the condition.