It is lawful under s.158 of the Equality Act 2010 for an employer to take action to compensate for disadvantages that it reasonably believes are faced by people who share a particular protected characteristic. 

This is separate to the provisions allowing positive action in relation to recruitment and promotion in Section 159 (this is explained below).

Positive action is lawful if it is taken to:

  • enable or encourage people who share a protected characteristic to overcome a disadvantage connected to the characteristic;
  • meet the needs of people who share a protected characteristic where those needs are different to those of people who do not have the characteristic; or
  • enable or encourage people who share a protected characteristic to participate in an activity in which their participation is disproportionately low.

The employer can encourage people from disadvantaged groups to apply for work, and can provide training to help equip them for the particular work.  

Section 159 of the Equalities Act: For recruitment and promotion purposes Positive action means that it is not unlawful to recruit or promote a candidate who is of equal merit to another candidate, if the employer reasonably thinks the candidate:

  • Has a protected characteristic that is under represented in the workforce; or
  • that people with that characteristic suffer a disadvantage connected to that characteristic.

Positive action does not allow an employer to appoint a less suitable candidate just because that candidate has a protected characteristic that is under-represented or disadvantaged.

How is this different from positive discrimination? Positive discrimination is recruiting or promoting a person solely because they have a relevant protected characteristic.