Last reviewed: 22 June 2022
- Ringfencing – also known as ‘positive discrimination’ – can be lawful if you ringfence roles for disabled people in general.
- Reserving roles for people with specific disabilities is usually unlawful.
- There are exceptions to this, and this can be allowed if having a specific disability is a genuine requirement of the role.
What is ringfencing?
Ringfencing, or ‘positive discrimination’ means reserving some jobs just for people with disabilities or a specific disability.
What is legal?
Ringfencing for disabled people in general is usually legal, but ringfencing for people with a specific disability is usually unlawful.
In the UK, this area is governed by the Equality Act 2010. This Act lists a number of protected characteristics, such as age, sex, race and disability.
Many of these protections apply to all – for example, you can claim for age discrimination at any age, and and people of all races and nationalities can claim race discrimination and people of all faiths and none can claim religious discrimination.. Disability is different – it only protects people who are disabled from unfavourable treatment, and not people who are not disabled. Because of this, it is known as ‘asymmetrical’.
This means it is usually legal to ringfence a role for a disabled person, as long as it is ringfenced for any disabled person.
What is not legal?
However, it is usually unlawful to ringfence a job for candidates with a specific disability – for example, by stating that you are only looking to hire a person with autism. A person who has a different disability could successfully claim that this discriminates against them.
An exception is when you need someone who has or has had a specific disability – if it is a genuine requirement of the role. For example, if you are hiring a mental health counsellor who needs lived experience of living with a mental health condition.
Another exception is Local Authorities. These are not allowed to positively discriminate in favour of disabled people under the Local Government and Housing Act 1989.
This area can be legally complex, so contact our Advice Service for advice about a specific situation.
What can we do?
You can (usually) ringfence positions for disabled applicants, as long as they are not ringfenced for people with specific disabilities.
Positive action
You can take ‘positive action’ to encourage disabled people to apply for jobs. An example would be to include a positive action statement on your job adverts such as ‘we welcome disabled applicants’ or ‘being part of Business Disability Forum’s membership, highlights our commitment to becoming a disability-smart organisation’.
Scenario
SolutionX is a software company. James, its CEO, has read that neurodiverse people make excellent programmers and that big tech companies in Silicon Valley hire lots of neurodiverse programmers and coders.
James tells his recruitment team to specify on job advertisements that the roles are open only to neurodiverse candidates. Miles, the HR Director, checks to see if this is lawful in the UK and realises that it isn’t. He does agree, however that the company could employ more disabled people and that this might encourage existing disabled employees, some of whom might be neurodiverse, to talk more openly about their conditions.
Miles suggests to James that the company work with disability organisations and job boards to advertise the roles widely to people with disabilities and that they make a clear statement on the job advertisement that they encourage applications from disabled people.
However, before doing any of this Miles wants to ensure that they have a robust workplace adjustments policy and process in place so that successful candidates will be able to start work as soon as possible whether or not they have a disability.
More information
For more information, see our resource ‘FAQs – Positive and proactive recruitment’.
BDF Members and Partners can also contact our Advice Service for advice about a specific situation.
Read next
- Ringfencing – Positive and proactive action
- FAQs – Positive and proactive recruitment
- ‘Offer an interview’ schemes
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