Positive Discrimination In Recruitment

A month or so ago, a marketing company launched a headline grabbing job advertisement. The advert featured Steve Jobs, who had dyslexia, and stated that “only dyslexics (like Steve) should apply”.

The advertisement said that the company wanted dyslexic staff because they have a ‘unique mind’ and think differently. Can employers choose staff based on a ‘protected characteristic’ (such as age, disability, race, gender, pregnancy/maternity or sexual orientation)?

The Equality Act allows employers to take positive action in relation to those with protected characteristics. In the recruitment context, that means that an employer faced with two candidates who are ‘as qualified’ as one another can pick the candidate who has a protected characteristic that they believe is disadvantaged in the workforce. This can be a somewhat nebulous test.

Dyslexia can be a disability but it is not always. Much depends on its severity. A disability for the purposes of the Equality Act will be anything that has a substantial impact on an individual’s day-to-day activities which is likely to continue for a year or more. Someone with very mild dyslexia may not qualify.

However, the company’s advert is not positive action. As only those with a protected characteristic may apply, it is positive discrimination. Whilst the Equality Act does not encourage positive discrimination in favour of disabled individuals, it does not prohibit it. It makes it clear that there can be no claim against an employer who treats a disabled person more favourably than someone who is not disabled. So whilst it might seem counter-intuitive, there is nothing unlawful in the advert.

Despite that, as with any role, if applicants with dyslexia amounts to a disability were to apply and be unsuccessful, the company may have to show that their reasons for this decision were non-discriminatory.

Rolleen McDonnell is a solicitor at leading senior executive employment law firm BDBF.