Definition
Lawful measures an employer can take under the Equality Act 2010 to address disadvantage, underrepresentation, or particular needs experienced by people who share a protected characteristic.
UK Context
Sections 158 and 159 of the Equality Act 2010 provide the legal framework for positive action in the UK. Unlike positive discrimination, which is unlawful, positive action allows proportionate measures to address disadvantage and underrepresentation. The tie-breaker provision in section 159 is specific to recruitment and promotion and must be applied carefully to avoid crossing into positive discrimination.
Best Practices
- Gather workforce data to identify genuine underrepresentation or disadvantage before taking action
- Ensure positive action measures are proportionate and clearly linked to the identified need
- Document the rationale for positive action decisions to defend against potential challenges
- Review the effectiveness of positive action measures regularly and adjust as needed
- Train HR and hiring managers on the distinction between lawful positive action and unlawful positive discrimination
Frequently Asked Questions
What is the difference between positive action and positive discrimination?
Positive action involves taking proportionate steps to address disadvantage or underrepresentation, such as targeted outreach or development programmes, while still selecting on merit. Positive discrimination means selecting someone solely because of a protected characteristic regardless of merit, which is unlawful in the UK except in very limited circumstances.
Can employers use positive action in recruitment?
Yes, employers can use positive action in recruitment by encouraging applications from underrepresented groups, adjusting processes to remove barriers, and using the tie-breaker provision in section 159 of the Equality Act 2010 to choose a candidate from an underrepresented group where candidates are equally qualified.
Is positive action mandatory for UK employers?
No, positive action is voluntary. Employers are not required to take positive action, but they are permitted to do so where they can demonstrate that people sharing a protected characteristic are disadvantaged, have different needs, or are underrepresented. Many employers choose to take positive action as part of their diversity and inclusion strategies.