Positive action

Lawful positive action

• Employers can lawfully discriminate in favour of disabled employees or job applicants. For example, a recruiter who wants to shortlist all disabled candidates who meet the minimum requirements of the job, or even to prefer a disabled candidate over a better-qualified non-disabled candidate, is free to do so.
• In certain circumstances, it is lawful for employers to expressly encourage people of a particular sex to apply for a job, whether through external recruitment or internal promotion. This applies if at any time in the past 12 months there has been no one of that sex doing the job, or the number of people doing the job has been comparatively small. Therefore a company that currently employs very few women engineers could lawfully state in a job advertisement for engineers that it would particularly welcome applications from women. The decision on who to recruit to the post must still, however, be based on objective factors, not on the applicant’s sex.
• Where one sex is under-represented in a particular job, it is also lawful for employers to limit training opportunities for that job to that sex. For example, if a company has no, or few, women at senior management level, it is free to put on a management development course for women employees only.
• There are similar provisions in the race discrimination legislation. These allow employers to encourage people of a particular racial group to apply for a job at a particular workplace, or to offer training for that work at that workplace to a particular racial group. For these exceptions to apply, the employer must be able to show that the particular racial group is under-represented in the work and at the workplace in question. This should be either in comparison with that group’s representation in the employer’s workforce as a whole or in comparison with its representation in the labour market from which the company normally recruits to that workplace.
• It is lawful for employers to give people of a particular racial group facilities or services to meet their special educational, training or welfare needs. This means, for example, that a company is free to arrange language tuition for those of its employees who have English as their second language.
• Employers may lawfully give only people of a particular age or age group access to training to fit them for particular work, or encourage people of a particular age or age group to take advantage of opportunities to do particular work, if it reasonably appears to the employer that the step prevents or compensates for disadvantages linked to age suffered by that age or age group.