Can you pick a candidate just because of their 'diversity' characteristic?

Yes, says Shilpen Savani, employment lawyer and Creative Equals Advisory Board member.

by Shilpen Savani
Last Updated: 26 Sep 2019

You have two candidates of equal merit. One’s a woman and one is a man. Can you choose one candidate over another, just because of their gender (or race, disability, age or any other of the protected characteristics?). 

Any employer who truly wants to attract and cultivate the best talent must recognise that staying ahead of the competition begins with your front door - recruitment – and this means more than blind CVs or 50:50 shortlists. Understanding what ‘positive action’ means – and how to drive it – is key to unlocking the door to diverse talent. 

What is positive action and how can it help?

Positive action allows employers to identify a disadvantaged or marginalised group and then take targeted steps to facilitate their inclusion. It’s governed by the Equality Act 2010 and has been in play since 2011, yet it remains unfamiliar territory to many employers and their advisors. 

It is not to be confused with positive discrimination, which undermines pure merits-based recruitment and promotion and is generally unlawful. The key to positive action is understanding the Equality Act 2010, which says an employer can take proportionate action against the disadvantages that are faced by those who share a ‘protected characteristic’, i.e. age, race, religion or belief, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, sex or sexual orientation. 

This means that it’s up to you as an employer to decide what positive action means. You can decide which of the protected characteristics needs action, which may include devising a policy statement for publication, providing focused training to meet the needs of a group (e.g. specific IT training for employees over a certain age), or action to encourage participation (e.g. reserving spaces on training courses for women or disabled people). 

It can also be used as a way to state the values of a business and make these known to employees, potential applicants and clients alike. The Act goes further by also allowing employers to take positive action in recruitment and promotion situations.

A question of ‘equal merit’ 

The Government Equalities Office states in its guidance that two candidates must be ‘of equal merit’ to each other before one is selected for recruitment (or promotion) over the other because of a protected characteristic. This effectively works as a tiebreaker, but the onus remains on the employer to satisfy itself that the two candidates are equally suited to the role in question. The exercise should be undertaken with care and in a way that provides a clear justification for the outcome. 

"We often hear, we’d like to hire a woman, but we don’t know whether we’re legally in the right to opt for positive action," says Ali Hanan, CEO of Creative Equals. "The fact is, the law is on your side. Of course, the exercise should be undertaken with care and in a way that provides a clear justification for the outcome and the selection criteria should be transparent."  

If you use positive action strategically, ‘hiring the right person for the team’ (and not the job) will mean you’ll gain all the benefits of increased diversity within your organisation. Everyone wins. 

Shilpen Savani is a partner at gunnercooke and a specialist in dispute resolution

Image credit: Kelly Bowden/Getty Images


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