The Equality Act and employment – how to navigate occupational requirements and positive action

Last week, two high-profile employment stories – the appointment of Scotland's first period dignity officer and RAF diversity targets – triggered a flurry of discussion about when it’s appropriate to restrict certain jobs to people with certain protected characteristics.

Without commenting on these individual examples, we thought it might be useful to help employers understand what the 2010 Equality Act says about this.

The Act recognises that, as well as treating people in the same circumstances equally, equality also requires different approaches where people’s needs and circumstances differ.?

First, it explicitly provides for situations where, to be effective, jobs may need to be carried out by people with certain protected characteristics – where this is an occupational requirement.?Examples might include the need for a counsellor for Deaf British Sign Language users to be Deaf, or for a counsellor working with female rape victims to be a woman in order to avoid causing them distress.?

In such cases, the employer may impose a requirement for applicants to have, or not have, certain protected characteristics where they can show this to be justified.

When it comes to improving diversity in the workforce, positive action can and should be used to increase participation of under-represented groups.

Examples can include targeting job adverts at particular groups or running outreach or development sessions for groups under-represented in the workforce.?It is also lawful to favour an applicant from an under-represented group where two candidates are equally qualified – such as where both score the same during the selection process. However, appointments must always be on merit – appointing someone purely because they have a particular protected characteristic would be unlawful discrimination against other candidates.

It’s for employers to decide whether they wish to apply an occupational requirement to a particular role or to use positive action and, where they do so, to justify this.

Our website contains plenty of resources for employers seeking to navigate these issues, including guidance on positive action and improving board diversity.