These two concepts are often confused, but they are fundamentally different under UK law. Positive action is generally lawful; positive discrimination is almost always unlawful.
Positive Action (Lawful)
The Equality Act 2010 permits employers to take voluntary steps to help people with a protected characteristic who are disadvantaged, under-represented, or have particular needs. Examples include:
- Targeted advertising to encourage applications from under-represented groups
- Offering training or mentoring programmes to specific groups
- Hosting open days for under-represented groups
- Providing networking opportunities
The key requirement is that positive action must be a proportionate response to a genuine disadvantage or under-representation.
The Tiebreaker Provision
Section 159 of the Equality Act allows a specific form of positive action in recruitment and promotion: where two candidates are equally qualified, an employer may choose the candidate from an under-represented group. This is sometimes called the "tiebreaker" provision. However, it must not be applied as a blanket policy.
Positive Discrimination (Unlawful)
Positive discrimination means treating someone more favourably because of a protected characteristic, regardless of merit. Examples of unlawful positive discrimination include:
- Hiring a less qualified candidate purely because of their ethnicity
- Setting quotas based on protected characteristics
- Guaranteeing interview slots based on gender
- Automatically promoting someone because of a characteristic
The Distinction
Positive action = levelling the playing field. Positive discrimination = giving preferential treatment. Employers who want to improve diversity should focus on removing barriers and encouraging applications rather than making selection decisions based on characteristics.
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