Q. I want to hire a female candidate – who is evenly matched with a male candidate – to increase the diversity of the company. Is that a good enough reason?
A. Employers are under significant pressure to increase gender diversity in the workplace.
Offering greater employment opportunities to women is often seen as a viable solution – however, certain rules have to be followed to prevent discrimination claims.
Although employers are generally advised to avoid using gender or any other protected characteristic as a determining factor when making hiring decisions, section 159 of the Equality Act 2010 allows for this if a particular characteristic is under-represented within an organisation.
Known as positive action it may only be used to separate candidates who are equally matched.
Trying to use gender as justification for hiring a less qualified female candidate will leave you open to claims of discrimination. Therefore, prior to taking positive action it is important to be sure both candidates are at the same level.
And a clear and robust recruitment procedure is important to ensure you have a good understanding of individuals’ abilities.
Using a candidate scoring sheet is a useful way to compare applicants against each other, scoring them on various criteria such as skills and experience.
Only once you are sure that there is nothing to separate the individuals should you consider positive action.
At this point, you may need to check again to be sure the number of women under your employment is truly disproportionately low.
This can be determined by analysing the personal data available to human resources representatives, or by potentially using figures taken from your gender pay gap report.
Finally, you will need to be confident that taking positive action in this situation is a reasonable means of achieving a legitimate business aim, or if there is another way to address the under-representation of female employees that is less likely to result in any unfavourable treatment of others.
Keep in mind you will be expected to justify your decision if a claim is ever brought to a tribunal.
While your intentions are admirable, it is important to understand the various pitfalls associated with taking positive action.
Having said this, if you follow the steps above and are confident that taking positive action is the most reasonable solution to improve equality in your organisation then you may proceed knowing that you have a lawful basis to do so.
Peter Done is managing director of Peninsula
