Positive action

What is positive action?

Positive action comprises the permitted steps which can be taken by an employer to assist groups with certain protected characteristics who are disadvantaged or under-represented within a workplace.

The relevant protected characteristics are: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation.

There is often confusion between the concepts of positive action and positive discrimination. It is not lawful to positively discriminate in favour of a protected group, for example by interviewing all female candidates for a job role regardless of whether they meet the qualifying criteria.

The Equality Act 2020 provides for two types of positive action: (1) General positive action; and (2) Positive action in recruitment and promotion (see The legal framework below).

There is no obligation on an employer to take positive action.

The legal framework

The legal provisions governing positive action are set out in sections 158-159 Equality Act 2010.

General positive action

In broad terms, the general positive action provisions can apply where an employer reasonably thinks that people with a protected characteristic are disadvantaged or have different needs compared to others, or that they are disproportionately under-represented in a particular activity.

In these circumstances, the employer can (but is not obliged to) take any action which is a proportionate means of achieving the aim of:

Enabling or encouraging persons who share the protected characteristic to overcome or minimise the disadvantage identified;
Meeting the needs identified; or
Enabling or encouraging persons who share the protected characteristic to participate in that activity.

Positive action in recruitment and promotion

Generally, an employer may be permitted to take positive action in a recruitment or promotion exercise where it reasonably thinks that people with a protected characteristic are disadvantaged or that they are disproportionately under-represented in a particular activity.

In these circumstances, the employer can (but is not obliged to) take proportionate action with the aim of enabling or encouraging persons who share the relevant characteristic to overcome, or minimise, the disadvantage, or participate in that activity. That action is treating someone with the protected characteristic more favourably than someone who does not have that characteristic.

However, this is only allowed where there is a tie-breaker situation ie the person with the protected characteristic is as qualified as other candidates to be recruited or promoted.

Be aware also, that:

an employer cannot have a policy of treating persons who share a protected characteristic more favourably in connection with recruitment or promotion than persons who do not share it; and
any action taken must also be a proportionate means of achieving a legitimate aim.

If these two criteria are not fulfilled, the positive action will be unlawful.

Benefits and challenges for business

The ongoing focus on social justice has put the spotlight on positive action as one of the steps which employers could consider to increase workplace diversity and equality. For many employers, this is a welcome approach and one which they want to embrace. However, positive action is not without its risks. Employers will need to carefully weigh the benefits of positive action versus its potentially unintended consequences and liabilities. These have been heavily documented in recent cases and in the media. For many employers, however, the desire to move the dial on diversity and equality will shift the risk assessment in favour of adopting strategies to improve representation and reduce disadvantage.