Sean Jones KCIn our imagined scenario, positive action could consist of appointing the minority ethnic candidate ahead of the white one. But before you mourn the end of meritocracy, it’s important to grasp some very important points … /6
The ability to take positive action is only available where the employer reasonably believes members of ethnic minorities are at a disadvantage or are under-represented: /7
THERE IS NO DUTY to take positive action. Instead the Act carves out a narrow exception from the general rule that appointments must not be influenced by the candidates’ race. In such exceptional circumstances positive action is permitted but not required. /8
Critically, you cannot use positive action to appoint a less-qualified candidate. It’s only available at all where the candidates are EQUALLY QUALIFIED. You can’t use it to pass over a better qualified candidate. /9
You can’t have a POLICY of preferring minority ethnic candidates and even if you jump through those hoops you’d still have to show it was a proportionate means of avoiding the disadvantage or addressing the under-representation. /10
That means that if alternative measure falling short of favouring the minority ethnic candidate were available, the positive action would not be lawful. /11
Sneezy 💚 :antifa: 🏳️⚧️ 🖤