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Practice dilemma: Positive discrimination?

Your practice is actively looking to recruit a female salaried GP. Can discriminate in this way? Our legal expert advises.

Your practice is actively looking to recruit a female salaried GP. Can discriminate in this way? Our legal expert advises.

From April 2011 there will be legislation in place to permit positive action in recruitment (and promotion) although there is currently nothing in law allowing this.

If you wait until April 2011 to recruit your new GP then you will be able to show a preference to one candidate (i.e. positive action) if certain requirements are met. In particular you would need to demonstrate that the successful GP is from a protected group that is disadvantaged or under-represented in your practice and are 'as qualified as' other eligible candidates, as well showing that there is no policy of more favourable treatment.

Unfortunately it is unclear how these criteria will be interpreted and the qualification criterion could give rise to the possibility of facing litigation by disappointed, unsuccessful, candidates who perhaps claim that they were 'better qualified' - the burden then being on the practice to show otherwise.

Therefore, whilst positive action is theoretically possible from April 2011, the uncertainty in the interpretation about when it will be permitted means that practices should only apply positive action with caution and it may be preferable to avoid it altogether. As such, practices contemplating taking positive action under the new rules from April are urged to seek advice before doing so to check whether it is permitted in the circumstances.

Alison Graham is a healthcare employment lawyer at Veale Wasbrough Vizards

Alison Graham is a healthcare employment lawyer at Veale Wasbrough Vizards

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