Exceptions in Equality Law

The Equality Act 2010 introduced new positive action provisions, which mean that it is lawful to recruit or promote a candidate on the basis of a protected characteristic who is of equal merit to another candidate, if you reasonably think that:

• The candidate has a protected characteristic that is under-represented in the workforce.
• People with that characteristic experience a disadvantage connected to that characteristic.
   

In practice, this means that if two or more candidates are of equal merit when assessed against objective selection criteria, you may take into consideration whether one is from a group that is disproportionately under-represented or otherwise disadvantaged within the workforce.

Positive action is different from positive discrimination (e.g. setting of quotas), which involves treating someone with a protected characteristic more favourably than another person without that characteristic.

For this type of positive action to be lawful, some information or evidence will be required to show that one of the required conditions described above exists. For example:
 

• Information on the characteristics of the existing workforce.
• Enquiries of comparable employers in the area/sector as a whole.
• Local / National surveys showing the employment figures for groups who share a protected characteristic.
• Qualitative evidence, such as through discussion with employees or their representatives.

The HR Division can supply data on staff (e.g. by gender and ethnicity) on request to identify areas where particular groups are under-represented.

All suitably qualified candidates must be considered on their individual merits against the selection criteria. Where one candidate is clearly superior or better qualified for the job than the others, then you must offer the position to that candidate.

The results of any positive action taken should be monitored and included in the strategic planning for the institution. The positive action must be a proportionate way of addressing the under-representation or advantage and therefore the strategies should be reviewed regularly to ensure that they are still appropriate and proportionate.

 
Positive action before advertising

Examples of positive action which could be taken to encourage applications from members of an under-represented group include:
 

• Encouraging applications from under-represented groups.
• Offering training or support to an under-represented group which is not available to other applicants.
• Offering work shadowing opportunities to people from the targeted group.
• Holding open days exclusively for the under-represented group.
• Highlighting that childcare facilities are available.
• Identifying potential applicants from the targeted group (e.g. through networking meetings, seminars, conferences and contacts in other organisations) then inviting them to apply for a particular role. This can be done in advance of a vacancy arising to build up a ‘bank’ of potential applicants in advance.

If, having read this information, you and your HR Business Manager/Adviser agree that you have sufficient justification for taking positive action, you may consider encouraging applications from people with a particular characteristic, using a sentence similar to the below on the advert:

"We particularly welcome applications from women and /or candidates from a BAME background for this vacancy as they are currently under-represented at this level in our department / institution / Faculty / School/University."

The Equality Act 2010 allows you to require a job applicant to have a particular protected characteristic if it is essential to the performance of the role.  This may be used are where someone of a particular sex is required for reasons of privacy and decency or where personal services are being provided. Alternatively, it might be that someone of a particular race or nationality is required where it is necessary for the post-holder to have a good knowledge of the culture and language of a particular group.

To apply an Occupational Requirement, you must be able to show that:

• The requirement is an occupational requirement (i.e. the job can only be performed effectively by someone with that protected characteristic).
• Applying the requirement is a proportionate means of achieving a legitimate aim.

Applying an occupational requirement improperly could result in unlawful direct discrimination. In order to ensure that applying an occupational requirement is proportionate to a legitimate aim, you should consider:

• Do any or all of the duties of the job need to be performed by a person with a particular characteristic?
• Could you use the skills of an existing worker with the required protected characteristic to do that aspect of the job?

Please seek advice from your HR Business Manager/Adviser before you place an advert which includes an occupational requirement.

Where you intend to apply an occupational requirement, you must explain this in the job advert and person profile (found within the role profile and HR7 Further Information document) as follows so that it is clear that there is no unlawful discrimination:

"It is an occupational requirement for the successful applicant to be [insert required protected characteristic] because [insert reason why this characteristic is required]. This is permitted under Schedule 9, part 1 of the Equality Act 2010."

There are some very limited circumstances where you can make a decision based on someone's age (i.e. you can directly discriminate) if you can show that this is objectively justified.

For instance, there are legal restrictions on the employment of children (e.g. the number of hours that they can work, the rest periods that they must have) which must be taken into account when offering work to young people. Please see the GOV.UK web pages for full details. 

An example where the decision could not be objectively justified would be deciding that someone is unable to undertake a physically active role because of their age without any evidence to support this, for instance.

Before any decision is made not to offer someone a position due to their age, this should be discussed first with the HR Business Manager / Adviser or the Clinical School Recruitment Team, as appropriate.

The University operates an Employer-Justified Retirement Age (EJRA) for academic University officers (established academic staff). Further details are available in the University’s Retirement Policy on its web pages.