Last reviewed: 22 June 2022
- Past and present barriers to employment and work experience can disadvantage disabled people.
- You may decide that 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.
- Generally, discriminating in favour of disabled people is lawful – but discriminating in favour of people with a specific disability is unlawful.
- It is lawful to discriminate in favour of people with a specific disability if it is a genuine occupational requirement.
What is positive action?
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’.
What is positive discrimination or ‘ringfencing’?
Positive discrimination – often called ‘ringfencing’ – means giving preferential treatment to disabled candidates.
For example, you could say that certain roles – or a certain proportion of roles – in the organisation are reserved solely for applicants with a disability.
Positive discrimination in favour of disabled people is legal
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.
Restricting roles to people with a particular disability is not lawful
It is important to note, however, that specifying that only people with a particular type of disability can apply is not lawful – for example, saying that roles are open to people with a learning disability or a neurodiverse condition such as autism. 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: “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. This is positive action, rather than positive discrimination.
If it is a genuine occupational requirement to have a particular disability – for example, lived experience of mental ill health to work as a mental health case worker – then employers can specify that candidates have a particular disability.
Positive discrimination and other protected characteristics
Employers should note that positive discrimination is legal only when it 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 apply to people of all races and men / boys and women / girls.
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 positions.
Genuine occupational requirement
It is possibly to specify a characteristic if it is a genuine occupational requirement for that role. For example, it is likely to be lawful to specify that an attendant in a male changing room must be a man.
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.
Conclusion
Positive discrimination is one of several tools an employer can use in becoming disability confident. It can help an employer increase the participation of 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.
Further information
For tailored guidance about positive action, positive discrimination and ‘ringfencing’, contact our Advice Service.
Read next
- Can we ringfence jobs for people with specific disabilities?
- Attracting disabled applicants
- Creating an inclusive workplace culture.
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