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Recruiting, Retaining & Progressing the Best Talent: Equality in the Workplace

20 Aug 2015







Our guest blogger Claire Nisbet is a Senior Solicitor in the Employment and Pensions team at Maclay Murray & Spens LLP. Whilst advising employers and employees on a wide range of employment issues, Claire specialises in advising clients on contentious employment, discrimination and equal pay matters.

Claire is the Treasurer of the Scottish Discrimination Law Association, a Committee Member of Scottish Women in Business and a Board Member of Graphic Enterprise Scotland, the Trade Association for Print Employers in Scotland. Since April 2015 Claire has acted as Assistant Editor and Research Assistant on the 3rd Edition of Employment Tribunal Practice in Scotland (Simon and Taggart), the only distinctly Scottish reference work of its kind.



Recruiting, Retaining & Progressing the Best Talent: Equality in the Workplace


Over the past 40 years there has been a rise in the percentage of women aged 16 to 64 in employment. In April to June 2013 around 67% of women aged 16 to 64 were in work, an increase from 53% in 1971 however the

 percentage of women, and other “minorities”, in senior positions is unrepresentative of their talent, capabilities and share of the workforce. With continued gender bias in pay and a demand for 

more flexible working, there is a need to rethink current methods of recruiting, developing and retaining staff. To increase motivation and productivity, employers need to put in place strategies to recognise and harness the talent of all their existing and potential employees.


What should employers be considering?


Employers should always be careful not to impose unnecessary barriers which may be discriminatory, consider flexible working (whether statutory or as a contractual benefit) and potentially positive action to reduce inequalities when recruiting or retaining staff.


Equal Pay

The underlying principle of the law around equal pay in the UK is that men and women should receive equal pay for equal work.  

Showing a commitment to auditing and publishing your pay practices, being transparent with pay models and “equality proofing" any decisions you make around recruitment and pay is likely attract and encourage the best key personnel. 


What about flexible working?

Employers who embrace flexible working will, given the requirements of Generation Y, be in a better position to recruit, retain and progress the best talent.

The extension of the right to requestflexible working from parents and carers to all employees (with 26 weeks service) occurred as of 30 June 2014.

Some employers have taken this opportunity to mainstream flexible working into its ethos, for example top tier law firm Herbert Smith Freehills have recently announced plans to implement agile working across all its London-based practice groups. Of the participants of the scheme which allowed working from home up to one day per week, three-quarters said flexible working enhanced their productivity.


Positive Action in recruitment…..a bridge too far?

The Equality Act 2010 permits positive action in relation to recruitment and promotion.

These provisions are designed to apply where people who share a protected characteristic suffer a disadvantage connected to the characteristic, have particular needs or are disproportionately under-represented. Employers can take certain actions to address these problems without opening themselves up to discrimination claims brought by employees or applicants without the relevant protected characteristic. The provisions are voluntary.

To use the clause safely, an employer has to demonstrate that the successful candidate is from a protected group that is disadvantaged or under-represented, and that the candidate is "as qualified as" any other eligible applicant.

Of course, recruitment or promotion decisions rarely come down to "qualifications" in the formal sense, with greater weight often given to experience and other more subjective qualities. In most cases, unless there is a clear winner, the final decision is reached by a partially-subjective process of weighing up each candidate's qualifications, experience, and other strengths and weaknesses.

With the uncertainty surrounding the positive action provisions, private sector employers have tended to steer clear of positive action when making recruitment decisions rather than risk facing claims. Such limited risk may however be preventing potential culture change which could ensure that the employer makes the most of untapped potential in the labour market.



For advice or more information around any of the issues discussed please email




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