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Past and present barriers to employment and work experience can disadvantage disabled people. You may decide that in order to increase the number of disabled people in your organisation you need to take positive action or even to discriminate positively in favour of disabled people.
Positive action is encouraging disabled people to apply for jobs. This is lawful. 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’.
Positive discrimination for disabled people is legal for most employers in the UK. This is because when it comes to disability, the Equality Act 2010 is an asymmetrical piece of anti-discrimination legislation. It only protects the rights of disabled people. It does not protect non-disabled people apart from in limited circumstances where a non-disabled person is treated less favourably because they have supported a complaint of discrimination by a disabled person, or because they are associated with a disabled person or are wrongly perceived to be disabled.
Employers should note that positive discrimination only applies to the disability component of the law. It is unlawful to positively discriminate on the grounds of the other protected characteristics such as race or gender as these cover men and women and people of all races. It is possibly to specify a characteristic if it is a genuine occupational requirement for that role e.g. a male changing room assistant.
This means that most employers can decide to either advertise jobs as open only to disabled people or allow disabled people the first attempt to secure vacancies. Only when the suitability of the disabled candidates has been decided is the recruitment drive widened to include everyone.
Many leading UK employers have decided to address the under-representation of disabled people in their workforces positively by, for example, using disability-only talent pools and shortlists, working with specialist recruitment agencies, or initiating projects where the employer works closely with relevant stakeholders to find candidates and build their skills for particular positions.
It is important to note, however, that specifying that only people with a particular type of disability can apply is not lawful e.g. saying that roles are open to people with a learning disability or a neurodiverse condition. This is because people with other disabilities could bring a claim for discrimination if they were well qualified for the job but excluded because of their disability.
Employers can encourage people with a particular disability to apply for certain roles. An employer could for example say that “We particularly welcome applications from people with learning disabilities who are under-represented in our organisation” if they have conducted an analysis that shows this to be true.
Positive discrimination and Local Authorities
Local authorities are not permitted to positively discriminate in favour of disabled people by the Local Government and Housing Act 1989. Local authorities can, however, take positive action to encourage applications from disabled candidates if disabled people are underrepresented in their workforce.
Positive discrimination is one of a number of tools for an employer to use in becoming disability confident. It can help an employer to target disabled people where they are under-represented in recruitment or training. However positive discrimination is not a substitute for ensuring that mainstream policies, practices, and procedures are barrier-free for disabled applicants and disabled employees. Under-representation of disabled people in certain roles or in training may indicate where there are barriers to be removed. All policies should be barrier-free, rather than relying on positive discrimination to redress the balance.
Some of the most commonly asked questions from employers regarding recruitment centre on positive action and positive discrimination. What is the difference and is either lawful?
Employers mindful of the need to increase the diversity of their workforce and who want to hire “different thinkers” also ask if they can hold some posts open only to people with certain disabilities such as neurodiverse conditions.
Here are answers to these and other frequently asked questions.
Q. What is meant by positive discrimination and can it ever be lawful?
A. Positive discrimination is when you treat someone more favourably because they have what’s known a protected characteristic under the Equality Act 2010. In most cases this is unlawful. An example would be saying you only want to appoint a woman for a particular job when there is no good job-related reason to have a woman in the role – i.e. it isn’t to work in female changing rooms or working with vulnerable women.
It is unlawful to positively discriminate in favour of people with one characteristic over another apart from in the cases of pregnancy and disability.
Q. What is the legal position regarding disability and positive discrimination?
A. The Equality Act works says is that it is unlawful to treat someone unfavourably because they have a protective characteristic i.e. their race, gender, religion, age. However, not being disabled is not a protected characteristic.
As far as disability is concerned the Equality Act is asymmetric. Only disabled people can bring a claim for disability discrimination, whereas race covers people of every race, and the same is true for gender, for examples. The only the only other category of people this applies to is pregnant women. This means that people who are not disabled or not pregnant cannot claim that they have been discriminated against because someone who is disabled or pregnant has been treated more favourably.
This means that employers can treat disabled people more favourably than other people by, for example, saying that they will only accept applications from disabled people for particular roles.
Q. Is it lawful for an employer say that they only want applications from people with a particular disability or type of disability – e.g. autism, dyslexia or other neurodiverse conditions – for vacancies?
A. This is likely to be unlawful. The direct discrimination provisions in the Equality Act prohibit discrimination on the basis of disability. If an employer only wants to hire people with a particular disability and rejects an application from someone with a different disability for that reason then that person could have a claim for disability discrimination.
Q. What can an employer do lawfully if they want to recruit more people with a particular disability?
E.g. because they are under-represented in their workforce or because they want to better represent their customers or the community they serve?
A. First, ring-fence a particular post for disabled people more generally. That way you will be more likely to reach people with that particular disability. Then work with Disabled Peoples’ Organisations and in particular organisations that work with people with those disabilities to see if they can help with advertising your vacancies. Remember, however, that many disabled people – including people with neurodiverse conditions – look for jobs in the same way as non-disabled people, so advertise through your usual channels as well.
If you are trying to ensure that more neurodiverse people apply for your vacancies make adjustments in advance to remove or reduce barriers that they might face when applying for the roles and within the role itself. This is a barrier analysis exercise:
- Go through all the job tasks and think about whether someone with a neurodiverse condition would find them difficult to perform. If the answer is yes, think about adjustments you could make to remove or reduce that difficulty or barrier. This could range from removing the task altogether, making an adjustment in anticipation and / or having a range of adjustments that you could make quickly if required by the person appointed.
- Think about the working environment including travel to and for work and common workplace procedures and practices. Again, think about any barriers or difficulties someone with a particular disability such as dyslexia or autism might experience and make adjustments in anticipation to remove or reduce the effects of these barriers. In addition think about further adjustments you could make quickly if required by the person appointed e.g. having assistive technology installed on work laptops to enable someone to work from home easily when necessary.
- Seek advice from Disabled Peoples’ Organisations and your own employee networks in this exercise.
Q. What does “positive action” mean?
A. Positive action under the Equality Act refers to a very specific situation where, as an employer, you can favour a person with a particular disability in recruitment provided a number of conditions are met. These are that:
- You have two candidates who have applied for a position who are equally qualified for the role;
- One of those candidates has a disability and the other does not; and
- You do not have a policy of favouring disabled people or people with a particular disability over others.
Appointing the disabled person is a proportionate means of increasing the participation of disabled people or people with that disability in your workforce.
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