Equality and Human Rights Commission

‘Positive action’ means the steps that an employer can take to encourage people from groups with different needs or with a past track record of disadvantage or low participation to participation to take up training, development, promotion or transfer opportunities.

An employer can use positive action where they reasonably think (in other words, on the basis of some evidence) that:

• people who share a protected characteristic suffer a disadvantage connected to that characteristic
• people who share a protected characteristic have needs that are different from the needs of people who do not share it, or 
• participation in an activity by people who share a protected characteristic is disproportionately low.

Sometimes the reasons for taking action will overlap. For example, people sharing a protected characteristic may be at a disadvantage and that disadvantage may also give rise to a different need or may be reflected in their low level of participation in particular activities.

To deal with the three situations, an employer can take proportionate action to:

• enable or encourage people to overcome or minimise disadvantage
• meet different needs, or
• enable or encourage participation.

When an employer is considering promoting someone, equality law allows positive action before or at the application stage, when the steps could include encouraging particular groups to apply, or helping people with particular protected characteristics to perform to the best of their ability (for example, by giving them training or support not available to other applicants).

In relation to training and development, equality law allows an employer to target training at particular groups.

An example of when an employer might decide to take positive action is if they have evidence that the make up of a particular level in their workforce is different from the make up of their local population, so they decide to encourage people who share particular under-represented protected characteristics to undertake training.

Or there is evidence that people with a particular protected characteristic are less likely to have a particular qualification which is relevant to a job or might increase their chances of getting promoted. The employer gives particular attention to training people from that group. 

This is not the same as ‘positive discrimination’ or ‘affirmative action’ which equality law does not allow.

Taking positive action is voluntary. An employer does not have to take positive action and you cannot make an employer use positive action in relation to training, development, promotion or transfer.

However:

• Meeting the different needs of a workforce (for example, in relation to training) can help make staff more productive.
• Recruiting from or promoting or developing a wider range of people, in terms of their protected characteristics, can help an organisation to understand its customers, clients or service users better.
• If an employer is a public authority, positive action may help them meet the public sector equality duty.

Equality law says that an employer has to go through a number of tests to show that positive action is needed.

The tests say that the steps an employer is allowed to take as part of positive action must be proportionate to these aims which means they must:

• be related to the level of disadvantage that exists;
• not be simply for the purposes of favouring one group of people over another where there is no disadvantage or under-representation in the workforce. For example:
• An education employer could not use positive action to attract male candidates on promotion for a head teacher’s job where men already hold 80 per cent of senior roles, even though women make up 70 per cent of the teaching workforce as a whole. Since the steps would not be being taken to overcome a disadvantage for or under-representation of men this would be unlawful direct discrimination.

However, the employer could use positive action to promote more women as they are under-represented at this level, for example, they could offer a training programme targeted at women to encourage them to apply for senior jobs and help make sure they can demonstrate the necessary skills to be the best candidate for a particular position.

An employer must not have a blanket policy or practice of automatically treating people who share a protected characteristic better than those who do not have it for promotion or transfer. An employer must still appoint the best person for the job, even if they do not have the particular protected characteristic being targeted by the positive action. However, there are special tie-break rules set out in the the next section.

The other positive action step an employer can take is to decide to promote a worker from a group sharing a protected characteristic if the employer reasonably believes this group to be disadvantaged or under-represented in the workforce or if their participation in an activity is disproportionately low.

The employer can only use these ‘tie-break’ provisions when faced with a choice between two candidates who are as qualified as each other. It is also possible, though it would be unusual, that a tie-break situation could arise where more than two candidates were equally qualified for the post.

Although it is most likely that the employer would use the tie-break provisions at the end of the promotion process, the employer can also treat an applicant more favourably at any earlier stage of the process, eg shortlisting. But the employer can only use these provisions if it is a proportionate way of enabling or encouraging people from the disadvantaged or under-represented group to overcome or minimise the disadvantage of that group.

For example:
A large company has no African Caribbean staff at manager level, even though it has many African Caribbean employees at more junior levels. When a vacancy at manager level arises, there are two candidates of equal merit. One candidate is African Caribbean and the other is not. The company could choose to offer the promotion to the African Caribbean candidate under the positive action provisions, so that the non African-Caribbean candidate could not claim race discrimination.

The employer must not have a general policy of treating people with the relevant protected characteristic more favourably in connection with promotion.
 

Equality law allows an employer to treat a disabled person better - or more favourably - than a non-disabled person. This recognises that disabled people face a lot of barriers to participating in work and other activities.. 

For example:

An employer has a policy of short-listing and interviewing all disabled applicants who meet the minimum requirements for jobs on promotion. The law would allow this. It would not be unlawful discrimination against a non-disabled applicant who also meets the minimum requirements but is not shortlisted.

There are a few exceptions where employers can target applicants with a particular protected characteristic without this being unlawful discrimination. These are not the same as positive action.  

For example:

If an ‘occupational requirement’ exists for the job:

An organisation exists to advance the interests of fathers. It may be possible for them to specify that their chief executive should be a father, since this post has a significant representative role. The applicant’s sex would be what is called an ‘occupational requirement’ for the job and this would apply to internal as well as external candidates.

The difference between an occupational requirement and positive action is that:

• An employer using an occupational requirement says that only people with a particular protected characteristic can do the job.
• An employer who wants to use positive action says that anyone who has the right skills, qualities and experience is able do the job, but they want to look especially hard for someone with a particular protected characteristic.
• You can read more about exceptions