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Lawful Outreach Positive Action

4. Lawful Outreach Positive Action

4.1 This section is mainly about the permitted positive action measures which are described in paragraphs 4.10 to 4.23. But, before describing these measures it is necessary to highlight certain exceptional issues which apply in the cases of (a) people who have disabilities, and (b) people of certain ages or age groups.

Outreach positive action for people who are disabled

4.2 Although the actions outlined below could lawfully be taken by you if you wish to take outreach positive action for the benefit of people who are disabled, you should also note that there are also more options open to you than those listed here. This is because the Disability Discrimination Act 1995 allows employers to take a wider range of outreach positive action measures than would be permissible under the other anti-discrimination laws. Further information is given in Section 5.

Outreach positive action for people in certain age groups

4.3 Similarly, although the actions outlined below could lawfully be taken by you if you wish to take outreach positive action for the benefit of people of certain ages or in certain age groups, you should also note that there may be more options open to you than those listed here.

4.4 This is because the Employment Equality (Age) Regulations (NI) 2006 would permit an employer to commit an act of direct discrimination (for example, reserving a quota of jobs for people in a certain age group) so long as the act can be objectively justified. This can only occur where the act is a proportionate means of achieving a legitimate aim.

4.5 Taking outreach positive action in an to effort to help people in certain age groups to overcome disadvantages that they are experiencing in gaining employment is almost certainly a legitimate aim. The harder question to answer is whether reserving a quota of job vacancies for people in a certain age group is a proportionate means of achieving that legitimate aim.

4.6 A number of different factors would need to be considered before answering that question, such as (a) the nature, cause and extent of the disadvantage that the people in the particular age group are under; (b) whether any alternative positive action strategy short of reserving a quota of jobs would be just as effective at addressing the problem; (c) whether such an alternative strategy has been tried already, and what was its outcome, (d) the size of the proposed quota in comparison with the total number of vacancies available in the organisation, (e) the number of employees in the organisation, (f) how long the employer proposes to operate the positive action scheme.

4.7 It is not possible to answer such questions here as the answers will depend on the particular circumstances that apply in different cases. Any employer who proposes to take such positive action in respect of people in certain age groups should contact the Equality Commission for advice before doing so.

Outreach positive action (other than for people who are
disabled or of certain ages or in certain age groups)

4.8 A list of the lawful outreach positive action steps is given in sections 4.10 to 4.23. Remember that these are the only ones that you are allowed to use when taking outreach positive action for groups other than for people who are disabled, or who are of certain ages or in certain age groups. You must also remember that some of these actions will only be lawful if certain pre-conditions are satisfied. Further information about these conditions is given in Sections 6 to 8 of this guide and further advice may be obtained from the Commission directly.

4.9 A good time to decide whether these conditions are satisfied is after you have completed an equal opportunities monitoring review.

Encouraging people to apply for job and training opportunities

4.10 You may be permitted to take certain outreach positive actions steps to encourage the members of particular under-represented or disadvantaged groups to apply for job or training vacancies in your workplace or to encourage them to consider taking up work in a particular occupation or profession.

4.11 This form of outreach positive action is especially appropriate where there is a group of people that is under-represented in your workforce and where the reason is largely because they are applying to work for you in relatively small numbers; i.e. in numbers that are lower than might otherwise be expected.

4.12 Lower than expected applicant numbers may be caused by the existence of “chill factors” that discourage people in certain groups from wanting to work for an employer. So, taking action to eliminate “chill factors” is a very good way to encourage those people to apply for your jobs.

4.13 It is crucial to remember that you are only permitted to encourage members of the targeted group, or groups, to apply to work for you. You are not permitted to reserve actual jobs for the members of the groups. You should continue to apply systematic, fair and objective recruitment and selection procedures when recruiting staff. The members of the targeted groups will have to apply for the jobs in the same way as other people and undergo the same selection procedures.

4.14 Furthermore, you are not permitted to encourage applications from members of the targeted group, or groups, by offering to pay them higher wages or to award then better benefits than you would normally pay or award to everyone else for doing the same work.

4.15 Finally, it also crucial that when encouraging applications from the members of one group that you do not actively discourage applications from members of another group; e.g. the members of the over-represented group. For example, in job advertisements do not say that you would “welcome applications from women, but not from men”.

4.16 Further information about this form of outreach positive action and the pre-conditions which apply is given in Section 6.

Offering training opportunities and facilities

4.17 You may be permitted to provide access to facilities for training exclusively to members of particular under-represented or disadvantaged groups.

4.18 This form of outreach positive action is especially appropriate where there is a group of people that is under-represented in your workforce and where the reason is largely because they are more likely than other groups to lack the qualifications or experience to do the work in question.

4.19 Therefore, providing training to members of that group can better equip them to do the work and will assist them to meet the selection criteria that you set when recruiting for job vacancies.

4.20 It is crucial to remember that you are only permitted to provide training opportunities. You are not permitted to reserve actual jobs for the trainees who benefit from the scheme. You should continue to apply systematic, fair and objective recruitment and selection procedures when recruiting staff. The trainees will have to apply for the actual jobs in the same way as other people and undergo the same selection procedures.

4.21 Further information about this form of outreach positive action and the pre-conditions which apply is given in Section 7.

Reserving job vacancies for persons who are unemployed

4.22 As noted previously, it is unlawful for you to simply reserve a quota of jobs for the members of particular under-represented or disadvantaged groups defined by reference to sex, religion, community background, race, sexual orientation (e.g. men or women, Protestants or Catholics; local people or migrant workers; gay people or straight people).

4.23 However, you are permitted by two of the anti-discrimination laws to reserve a quota of jobs for people who are presently unemployed, or who have been unemployed for a specified period of time. Further information about this form of outreach positive action is given in Section 8.