Many employers and their advisors will be wary about using the tie-breaker clause in the Equality Act which came into effect on 6 April. It will allow employers – for the first time ever – to prefer a candidate with a protected characteristic over another equally-qualified candidate for recruitment or promotion, but only in limited circumstances.[1] These characteristics are obtained where employers ‘reasonably think’ that people with that characteristic are under-represented in their workforce, and that acting in this way is a ‘proportionate’ way of addressing this.
Unlike other, more general, positive action measures – which have been lawful in one form or another for many years – this is the first time that a limited degree of positive discrimination will be allowed. The Government Equalities Office, in its FAQs on positive action, suggests that there are business benefits to be had in using this provision to diversify an employer’s work force. However a more detailed look at the provisions and the guidance recently published by the GEO suggests that the equation is not that straightforward.
Three key phrases
There are three key legal phrases to unpick, which all come from section 159 of the Equality Act.
1. Equally qualified
Taking these in turn, the first hurdle is what is the meaning of equally qualified? The Act says that, provided the other conditions are met, it is lawful to prefer a member of a protected group where he or she is ‘as qualified as’ the other candidate. The guidance suggests that this should be measured against the set of criteria which the employer adopts when selecting for the particular post or promotion. But even on this basis it may be difficult in many cases to say whether any two candidates are equally qualified, particularly when a large range of qualities are being assessed.
2. Reasonably think
Secondly, once an employer has established there is a tie-breaker situation, to use this positive action measure it must ‘reasonably think’ that people with a protected characteristic are under-represented in the workforce, or suffer a connected disadvantage. The guidance suggests that some evidence will be required, but it need to be that sophisticated. For example it may be enough for the employer to look at a statistical analysis of its workforce, and compare that with appropriate benchmark figures.
3. Proportionate
The third main requirement is that using this particular positive action measure is ‘proportionate’. That is a term imported from EU law which has a pretty uncertain meaning. In this context it could be seen as imposing a requirement that the benefit of adopting this measure for the protected group should not be out of proportion to its discriminatory effect on other people. In other words, if there are other measures that could be taken that would be equally effective to achieve diversity in the workforce, then those should be adopted instead. These could include the broader positive action measures that have been allowed for many years, such as targeting advertising or mentoring schemes. Strangely the only example given in the guidance is of limited application: a small voluntary organisation with all female staff, which concludes it would not be proportionate to use section 159 to achieve a more gender-balanced workforce.
Who would use the tie-breaker?
Perhaps it is possible to extrapolate from the above example to see where section 159 might be worth considering. Suppose a large employer is recruiting large numbers of semi-skilled workers where the essential requirements of the job are fairly basic and can easily be measured, probably using on-line application forms. Such an employer will probably also have monitoring statistics showing the composition of its existing workforce which it can easily bench-mark, and may have been deploying lawful positive action measures for many years to increase representation from certain minority groups, but with limited success. In such a scenario – in contrast to a small voluntary organisation – it could consider deploying the tie-breaker provisions.
However the guidance is silent about a number of difficult issues. For a start, do you tell candidates at the outset that you may use this provision? The GEO’s step by step guide suggests that this may be best practice, in the interests of transparency. But would you go further and tell candidates that you have in fact used the tie-breaker provision to make a final decision? Presumably not. To guard against any legal challenge, it would be necessary to record the scores given to the short-listed candidates, and the reason for the final decision. These documents could probably be obtained, either by a subject access request, or after the issue of legal proceedings by way of disclosure. If this information became generally available, it could increase the risk of litigation, not to mention the difficulties it would cause for staff morale.
Culture change
A fairly significant culture change is probably required before the tie-breaker provision is extensively deployed. It is interesting that the coalition government has decided to put its toe in the water, despite misgivings about this kind of measure voiced by the Conservative Party prior to the general election. In the meantime many employers who want to encourage greater diversity may prefer to convince themselves that the person from the protected group is indeed the strongest candidate.
|
The tie-breaker provision at a glance
An employer can prefer a candidate from a protected group over another equally-qualified candidate if:
- it reasonably thinks that people with that protected characteristic are under-represented in the workforce, or suffer a disadvantage connected with it;
- it takes this action with the aim of increasing diversity or overcoming that disadvantage and on a case-by-case basis rather than as a general policy, and
- taking the action is a proportionate means of achieving its aim.
|
[1] For more background on the Equality Act 2010 see Michelle Gray’s article, ‘Some more equal than others’ in The People Bulletin, 29 June 2010.