Positive Action in Employment Law: Limits in UK Workplace Discrimination Rules

Positive action in UK employment law refers to measures that employers can lawfully take to address disadvantages experienced by people with protected characteristics under the Equality Act 2010. It is distinct from positive discrimination, which is generally unlawful.

The law allows limited positive action to improve equality of opportunity, but it imposes strict boundaries. Employers must ensure that any measures taken do not unfairly discriminate against other candidates or employees.

This article explains what positive action is, the legal limits that apply, how it differs from positive discrimination, and how Employment Tribunals assess compliance.

Legal Framework: Equality Act 2010

Positive action is governed primarily by:

• Section 158 Equality Act 2010 (general positive action provisions)
• Section 159 Equality Act 2010 (tie-break situations in recruitment and promotion)

These provisions allow employers to take proportionate steps where there is evidence of:

• Disadvantage experienced by people with a protected characteristic
• Different participation rates in employment activities
• Disproportionately low representation in a workforce

Protected characteristics include sex, race, disability, age, religion or belief, sexual orientation, and others covered under the Act.

What Positive Action Means in Practice

Positive action refers to lawful measures aimed at:

• Reducing inequality in access to employment
• Encouraging underrepresented groups to apply
• Providing training or development opportunities
• Supporting progression into senior roles

It is designed to level the playing field, not to guarantee outcomes.

Examples include:

• Targeted outreach to underrepresented groups in recruitment campaigns
• Offering training schemes for disadvantaged applicants
• Mentoring programmes for minority employees
• Encouraging applications from underrepresented groups in job adverts

The Legal Limits of Positive Action

The Equality Act 2010 imposes strict conditions. Positive action is only lawful where it is:

1. Evidence-based

The employer must reasonably believe that a group:

• Suffers disadvantage
• Has different needs
• Is underrepresented in the workforce

Without evidence, positive action cannot be justified.

2. Proportionate

Any measures taken must be appropriate and no more than necessary. This requires balancing:

• The aim of reducing inequality
• The impact on other candidates or employees
• Whether less intrusive measures could achieve the same goal

3. Non-discriminatory in outcome (except in limited tie-break cases)

Positive action must not become automatic preference based solely on protected characteristics, except where Section 159 applies in very limited circumstances.

Positive Action vs Positive Discrimination

A key legal distinction exists:

Positive action (lawful if conditions met)

• Encouraging underrepresented groups
• Providing additional support or training
• Targeted recruitment outreach
• Tie-break preference in limited cases

Positive discrimination (generally unlawful)

• Automatically hiring or promoting someone solely because of a protected characteristic
• Excluding other candidates purely on that basis
• Quotas based on race, sex, or other characteristics

UK law does not permit quotas in recruitment or promotion decisions.

Section 159: Tie-Break Situations

Section 159 allows limited preference in recruitment or promotion where:

• Two candidates are “as qualified as” each other
• There is underrepresentation of a protected group
• The employer reasonably believes selecting the candidate from the underrepresented group will help address inequality

However, this is tightly controlled:

• Candidates must be genuinely equal in suitability
• The policy must not be automatic
• Employers must not have a blanket rule favouring one group
• Each decision must be assessed individually

This is one of the narrowest forms of lawful preference in UK employment law.

Common Examples of Positive Action Limits

Recruitment advertising

Lawful:

• “We encourage applications from underrepresented ethnic minority groups”

Unlawful:

• “We will only hire candidates from X group”

Training programmes

Lawful:

• Leadership training aimed at women in senior management where women are underrepresented

Unlawful:

• Excluding men from training opportunities solely based on sex

Apprenticeships or internships

Lawful:

• Outreach programmes targeting disadvantaged communities

Unlawful:

• Restricting access only to a specific racial group

How Tribunals Assess Positive Action

Employment Tribunals examine whether:

• The employer had reliable evidence of disadvantage or underrepresentation
• The measures were targeted and proportionate
• Decision-making remained fair and individualised
• No automatic preference or exclusion occurred

Tribunals are cautious about schemes that drift into unlawful positive discrimination.

Risks of Exceeding Legal Limits

Employers who go beyond lawful positive action may face claims for:

• Direct discrimination
• Indirect discrimination
• Unlawful recruitment practices

Potential consequences include:

• Compensation for injury to feelings
• Financial loss awards
• Reputational damage
• Tribunal orders requiring policy changes

Claims are typically brought in the Employment Tribunal under the Equality Act 2010.

Objective Justification and Compliance Considerations

While positive action does not rely on the standard “objective justification” defence in the same way as indirect discrimination, employers must still demonstrate:

• Clear evidence base
• Reasoned policy design
• Proportional implementation
• Regular review of outcomes

Policies that are not regularly reviewed may become unlawful over time if circumstances change.

Legal Process for Challenging Positive Action

An individual who believes positive action has crossed into unlawful discrimination may:

1. Raise internal complaint

• Challenge recruitment or policy decisions
• Request written justification

2. ACAS Early Conciliation

• Mandatory step before tribunal proceedings
• Attempt resolution without litigation

3. Employment Tribunal claim

The tribunal will assess:

• Whether discrimination occurred
• Whether the employer relied on lawful positive action provisions
• Whether limits under sections 158 or 159 were exceeded

Time Limits

Discrimination claims must generally be brought within:

• 3 months minus one day from the act complained of

Time limits pause during ACAS Early Conciliation.

Common Questions from our Readers

Is positive action the same as affirmative action?

No. UK law is more limited and does not allow quotas or automatic preferences in most cases.

Can employers set quotas?

No. Quotas based on protected characteristics are generally unlawful under UK law.

Can positive action be used in promotion decisions?

Yes, but only under strict conditions, especially where candidates are equally qualified.

Do employers need evidence before using positive action?

Yes. There must be a reasonable belief supported by information or data.

Key Takeaways

Positive action in UK employment law allows employers to take limited steps to reduce disadvantage and improve equality of opportunity. However, the legal limits under the Equality Act 2010 are strict.

Key points include:

• It must be evidence-based and proportionate
• It cannot involve automatic preference or quotas
• Section 159 allows only limited tie-break preferences
• Positive action must not become unlawful positive discrimination
• Employment Tribunals closely scrutinise implementation

Understanding the boundary between lawful positive action and unlawful discrimination is essential for employers designing equality policies and for individuals assessing their rights.