(1)This section applies if a person (P) reasonably thinks that—
(a)persons who share a protected characteristic suffer a disadvantage connected to the characteristic, or
(b)participation in an activity by persons who share a protected characteristic is disproportionately low.
(2)Part 5 (work) does not prohibit P from taking action within subsection (3) with the aim of enabling or encouraging persons who share the protected characteristic to—
(a)overcome or minimise that disadvantage, or
(b)participate in that activity.
(3)That action is treating a person (A) more favourably in connection with recruitment or promotion than another person (B) because A has the protected characteristic but B does not.
(4)But subsection (2) applies only if—
(a)A is as qualified as B to be recruited or promoted,
(b)P does not have a policy of treating persons who share the protected characteristic more favourably in connection with recruitment or promotion than persons who do not share it, and
(c)taking the action in question is a proportionate means of achieving the aim referred to in subsection (2).
(5) “Recruitment” means a process for deciding whether to—
(a)offer employment to a person,
(b)make contract work available to a contract worker,
(c)offer a person a position as a partner in a firm or proposed firm,
(d)offer a person a position as a member of an LLP or proposed LLP,
(e)offer a person a pupillage or tenancy in barristers' chambers,
(f)take a person as an advocate's devil or offer a person membership of an advocate's stable,
(g)offer a person an appointment to a personal office,
(h)offer a person an appointment to a public office, recommend a person for such an appointment or approve a person's appointment to a public office, or
(i)offer a person a service for finding employment.
(6)This section does not enable P to do anything that is prohibited by or under an enactment other than this Act.
518.This section permits an employer to take a protected characteristic into consideration when deciding whom to recruit or promote, where people having the protected characteristic are at a disadvantage or are under-represented. This can be done only where the candidates are as qualified as each other. The question of whether one person is as qualified as another is not a matter only of academic qualification, but rather a judgement based on the criteria the employer uses to establish who is best for the job which could include matters such as suitability, competence and professional performance. The section does not allow employers to have a policy or practice of automatically treating people who share a protected characteristic more favourably than those who do not have it in these circumstances; each case must be considered on its merits. Any action taken must be a proportionate means of addressing such disadvantage or under-representation.
519.The section defines recruitment broadly, so that for example offers of partnership or pupillage, or tenancy in barristers’ chambers, are included.
520.The section is intended to allow the maximum extent of flexibility to address disadvantage and under-representation where candidates are as good as each other, within the confines of European law.
521.This section is new. While previous legislation allowed employers to undertake a variety of positive action measures, for instance offering training and encouragement for certain forms of work, it did not allow employers to take any form of positive action at the actual point of recruitment or promotion. This section extends what is possible to the extent permitted by European law, and applies in relation to all protected characteristics.