Personnel Today
  • Home
    • All PT content
  • Email sign-up
  • Topics
    • HR Practice
    • Employee relations
    • Learning & training
    • Pay & benefits
    • Wellbeing
    • Recruitment & retention
    • HR strategy
    • HR Tech
    • The HR profession
    • Global
    • All HR topics
  • Legal
    • Case law
    • Commentary
    • Flexible working
    • Legal timetable
    • Maternity & paternity
    • Shared parental leave
    • Redundancy
    • TUPE
    • Disciplinary and grievances
    • Employer’s guides
  • AWARDS
    • Personnel Today Awards
    • The RAD Awards
  • Jobs
    • Find a job
    • Jobs by email
    • Careers advice
    • Post a job
  • Brightmine
    • Learn more
    • Products
    • Free trial
    • Request a quote
  • Webinars
  • Advertise
  • OHW+

Personnel Today

Register
Log in
Personnel Today
  • Home
    • All PT content
  • Email sign-up
  • Topics
    • HR Practice
    • Employee relations
    • Learning & training
    • Pay & benefits
    • Wellbeing
    • Recruitment & retention
    • HR strategy
    • HR Tech
    • The HR profession
    • Global
    • All HR topics
  • Legal
    • Case law
    • Commentary
    • Flexible working
    • Legal timetable
    • Maternity & paternity
    • Shared parental leave
    • Redundancy
    • TUPE
    • Disciplinary and grievances
    • Employer’s guides
  • AWARDS
    • Personnel Today Awards
    • The RAD Awards
  • Jobs
    • Find a job
    • Jobs by email
    • Careers advice
    • Post a job
  • Brightmine
    • Learn more
    • Products
    • Free trial
    • Request a quote
  • Webinars
  • Advertise
  • OHW+

Age discriminationEmployment lawEquality, diversity and inclusionLatest NewsDiscrimination

Is the law confusing around positive action and diversity in the private sector?

by Ranjit Dhindsa 25 Feb 2022
by Ranjit Dhindsa 25 Feb 2022 Photo: Shutterstock
Photo: Shutterstock

Many employers are keen to increase diversity in their workplaces, but is the law around positive action vs positive discrimination in the UK holding them back, asks Ranjit Dhindsa?

Diversity in the workplace is unanimously agreed to be a good thing, but the law governing routes to achieving this is less favourably regarded.

The Equality Act 2010 allows employers to take positive action (which is lawful), but does not allow positive discrimination (which is unlawful).

Positive action is based on the view that under-represented groups should be given equality of opportunity to overcome disadvantages they face. Positive discrimination is treating a person more favourably because of their protected characteristic(s).

Positive discrimination is therefore a form of direct discrimination, which is prohibited under the Equality Act.

The consequences of being accused of, or found to have exercised, direct discrimination by whatever means are serious, and can result in expensive, time-consuming tribunals, compensation pay-outs, reputational damage and damage to employer-workforce relations.

But the distinction between lawful efforts to increase diversity and unlawful decisions about how to treat different groups of people can be confusing for employers, with the result that some fear taking any steps to improve diversity at all for fear of falling foul of the law.

So, what constitutes positive action and how can employers get it right?

Positive action

There are two types of positive action which are considered lawful.

General positive action
Section 158 of the Equality Act 2010 allows positive action when an employer reasonably thinks that a protected group:

  • Suffers a disadvantage
  • Has particular needs; and/or
  • Does not participate enough in an activity (including employment).

Section 158 allows the employer to take proportionate action to reduce the disadvantage, meet the particular needs of the group or increase participation.

For example, an employer could decide that following a gender pay gap review, there are not sufficient women at senior levels in the workplace, and may therefore wish to encourage more female participation. There is very little case law regarding Section 158, which causes employers to be confused about how far they can go when taking positive action. Often employers inadvertently fall into the trap of positive discrimination.

Diversity

Ethnic minorities ‘as likely to be in top roles’ as white counterparts in UK: Civitas 

Firms should disclose ethnicity pay gap 

Time for action on ethnic diversity in the workplace 

Black jobs matter: does the law curb positive action? 

To avoid this, an employer will first need some form of evidence of disadvantage, particular need or lack of participation to justify taking general positive action. This could be in the form of data, equality impact audits, profile of the workforce, employee surveys or pay gap reports.

Many employers do not collate evidence before taking positive action, which can be a risk if their actions are challenged.

Employers are often unaware that there are many types of positive action that they can take. These could include:

  • Reviewing their recruitment process and ensuring bias is eliminated at every stage
  • Reviewing retention and promotion practices and ensuring there is no disadvantage for a particular group. If there is disadvantage employers can put in place a variety of steps such as coaching, mentoring, reverse mentoring; and/or
  • Raising awareness and education in a number of different ways. For example, creating values advocates, establishing networks and facilitating individuals and groups to share their experiences.

There is no prescriptive list of what constitutes positive action. Each employer will need to tailor the steps they take according to the issues their organisation faces.

However, it would be helpful if more employers shared examples of the different forms of positive action they have implemented, so that the private sector as a whole can learn from best practice and build confidence around improving workplace diversity.

Recruitment and promotion

The second form of positive action is specific to recruitment and promotion. Section 159 of the Equality Act 2010 allows employers to recruit or promote a person with a protected characteristic if they are equally qualified as the other candidate.

This is commonly known as a “tie-breaker” provision. However, the employer must not have a policy of automatically recruiting a person because of their protected characteristic.

This tie-breaker provision is also confusing. In practice, there are rarely two candidates who are of equal merit, particularly when recruiting for more senior roles.

There has only been one case to date which has considered Section 159. In 2019, the chief constable of Cheshire police was successfully sued by Mr Furlong when they operated an automatic blanket preference for under-represented groups. An assessment of the data showed that not all candidates were equal and some scored better than others in the recruitment process. Further, the steps they took were not proportionate, and Mr Furlong successfully won his discrimination claims.

In recent years, employers have started to adopt the “Rooney Rule”, which has been inherited from the US. This suggests that at least one candidate during the recruitment process should be from an underrepresented group. UK law has not yet tested whether the Rooney Rule would fall within the provisions of Section 159 or not.

Conclusion

The law is not well developed on positive action in the UK. However, the general provisions under Section 158 should be adopted by employers, even if the ambit of the law is not clear.

Employers can seek guidance from the Equality and Human Rights Commission, which has prepared a code on positive action. The Government Equalities Office has also produced a quick-start guide and step-by-step practical guide to using positive action when making appointments.

Sign up to our weekly round-up of HR news and guidance

Receive the Personnel Today Direct e-newsletter every Wednesday

OptOut
This field is for validation purposes and should be left unchanged.

With regard to recruitment and promotion, employers need to take care to ensure the provisions of Section 159 are not breached, leading to claims of discrimination from excluded candidates. However, taking care is not the same as doing nothing, as lack of effort to improve diversity brings its own risks.

HR Director opportunities on Personnel Today


Browse more HR director jobs

Ranjit Dhindsa

Ranjit Dhindsa is head of employment, pensions, immigration and compliance at Fieldfisher.

previous post
Union asks for meeting with Asda bosses over pay
next post
National OH strategies needed for health sector, report suggests

You may also like

West Yorkshire Police denies positive discrimination accusations

10 Apr 2025

Thames Valley Police ‘positive discrimination’ led to ‘divided...

4 Apr 2025

Apple urges shareholders to reject diversity rollback proposal

13 Jan 2025

EHRC opens consultation on updated code of practice

2 Oct 2024

White police officers overlooked for promotion win race...

13 Aug 2024

Want more female leaders? Ditch quotas and shake...

11 Apr 2024

Employers need more support to develop effective EDI...

20 Mar 2024

Kemi Badenoch: ‘confused HR colleagues’ misunderstand Equality Act

31 Jul 2023

Leaked emails suggest RAF disadvantaged white male applicants

31 May 2023

Government publishes ethnicity pay gap reporting guidance

17 Apr 2023

  • 2025 Employee Communications Report PROMOTED | HR and leadership...Read more
  • The Majority of Employees Have Their Eyes on Their Next Move PROMOTED | A staggering 65%...Read more
  • Prioritising performance management: Strategies for success (webinar) WEBINAR | In today’s fast-paced...Read more
  • Self-Leadership: The Key to Successful Organisations PROMOTED | Eletive is helping businesses...Read more
  • Retaining Female Talent: Four Ways to Reduce Workplace Drop Out PROMOTED | International Women’s Day...Read more

Personnel Today Jobs
 

Search Jobs

PERSONNEL TODAY

About us
Contact us
Browse all HR topics
Email newsletters
Content feeds
Cookies policy
Privacy policy
Terms and conditions

JOBS

Personnel Today Jobs
Post a job
Why advertise with us?

EVENTS & PRODUCTS

The Personnel Today Awards
The RAD Awards
Employee Benefits
Forum for Expatriate Management
OHW+
Whatmedia

ADVERTISING & PR

Advertising opportunities
Features list 2025

  • Facebook
  • Twitter
  • Instagram
  • Linkedin


© 2011 - 2025 DVV Media International Ltd

Personnel Today
  • Home
    • All PT content
  • Email sign-up
  • Topics
    • HR Practice
    • Employee relations
    • Learning & training
    • Pay & benefits
    • Wellbeing
    • Recruitment & retention
    • HR strategy
    • HR Tech
    • The HR profession
    • Global
    • All HR topics
  • Legal
    • Case law
    • Commentary
    • Flexible working
    • Legal timetable
    • Maternity & paternity
    • Shared parental leave
    • Redundancy
    • TUPE
    • Disciplinary and grievances
    • Employer’s guides
  • AWARDS
    • Personnel Today Awards
    • The RAD Awards
  • Jobs
    • Find a job
    • Jobs by email
    • Careers advice
    • Post a job
  • Brightmine
    • Learn more
    • Products
    • Free trial
    • Request a quote
  • Webinars
  • Advertise
  • OHW+