This guide is maintained as a current resource for July 2026 and covers only the laws of England and Wales. Information is for general guidance, not legal advice. Consult a qualified solicitor for advice specific to your situation.
Detailed guide to positive action in the workplace in England and Wales under the Equality Act 2010. Explains when positive action is lawful, differences from positive discrimination, legal limits, practical examples, and steps employers can take to support underrepresented or disadvantaged protected groups while staying within legal boundaries.
Positive action in the workplace is a set of legal measures under the Equality Act 2010 that allow employers to take voluntary, targeted steps to support people who share a protected characteristic. The aim is to reduce disadvantage, meet specific needs, and encourage greater participation in recruitment, training, promotion and employment generally. Positive action is distinct from positive discrimination - the latter being unlawful in Great Britain - and can be a valuable part of an employer's diversity and inclusion strategy when implemented correctly. This article explains how positive action works, the legal criteria and limits on its use, practical examples, common risks, and the steps employers should take to ensure lawful implementation.
What Positive Action Is and Why It Matters
The Equality Act 2010 permits positive action as an exception to the usual prohibition on discrimination, recognising that some groups face systemic barriers or underrepresentation in certain roles or sectors. Employers can therefore lawfully take proportionate steps to help such groups overcome disadvantage or participate more fully in employment activities. Positive action is entirely voluntary; there is no legal obligation for an employer to use it.
Positive action becomes relevant where the employer reasonably thinks that:
- a group with a protected characteristic is at a disadvantage related to that characteristic,
- has different needs from others, or
- is underrepresented in the workforce or a particular role.
The law explicitly allows such measures to be proportionate and reasonably considered as a way of achieving better equality of opportunity for those who share a protected characteristic.
Legal Framework: Equality Act 2010
Positive Action Provisions
The positive action rules are found primarily in:
- Section 158 (General positive action) - allows a broad range of supportive measures where a protected group is disadvantaged, has different needs, or is underrepresented.
- Section 159 (Positive action in recruitment and promotion) - allows preferential treatment between candidates of equal merit in recruitment or promotion to help address underrepresentation or disadvantage.
Positive action provisions augment, rather than replace, the standard anti‑discrimination protections in the Equality Act 2010. As such, they operate as exceptions to what would otherwise be unlawful discrimination.
Types of Positive Action
1. General Positive Action (Section 158)
General positive action allows employers to take a broad range of measures designed to support disadvantaged individuals or encourage participation in activities where that group's representation is disproportionately low. Examples include:
- Targeted outreach or recruitment events for underrepresented groups.
- Mentoring and leadership development programmes tailored to a particular group.
- Additional training or support to help overcome barriers related to a characteristic.
- Providing information or support that meets different needs experienced by that group.
These activities are lawful provided they are a proportionate way of achieving the desired aims and supported by evidence of disadvantage, need or underrepresentation.
2. Positive Action in Recruitment and Promotion (Section 159)
Section 159 permits a limited form of preferential consideration between candidates when deciding who to recruit or promote, but only where:
- the candidates are as qualified as one another;
- the employer reasonably thinks that people with a particular protected characteristic are underrepresented or disadvantaged; and
- giving preference to the candidate with the protected characteristic is a proportionate means of addressing that situation.
This is often called the ‘tie‑breaker' provision. It allows an employer, for example, to choose a candidate from an underrepresented group only when they are equally suitable compared with others.
Practical Examples
Supportive Programmes
A retail employer finds that women represent only a small percentage of its senior management. The employer offers a women‑only development programme to support skills and confidence, backed by internal data showing low female representation in leadership. This is lawful general positive action, as it aims to encourage participation and address underrepresentation.
Recruitment Tie‑Breaker
Two candidates - one with a disability and one without - are assessed as equally qualified for a manager role. The employer reasonably believes that people with disabilities are underrepresented in similar roles. Using positive action provisions, the employer can choose the candidate with the disability, provided the choice is proportionate and justified.
Legal Limits and Risks
Positive Discrimination Is Unlawful
Positive action must not cross the line into positive discrimination, which remains unlawful in Great Britain. Positive discrimination involves favouring a candidate solely because they have a protected characteristic, without regard to the statutory criteria or merit. Examples include setting quotas or reserving roles exclusively for a group without evidence of disadvantage or underrepresentation.
A tribunal or court will treat action that goes beyond the statutory positive action provisions as direct discrimination if it results in an unfair adverse impact on others. This can give rise to claims, potential compensation awards, and legal costs.
Proportionality and Evidence
Employers must demonstrate that positive action measures are proportionate means of achieving equality objectives. Evidence such as workforce diversity data, sector trends, local labour market information, and consultation with staff groups can support a reasonable and proportionate approach. Measures that are arbitrary, indefinite or not monitored over time may be challenged as disproportionate.
Equal Merit Requirement
In recruitment and promotion, positive action applies only where candidates are truly of equal merit. Artificially lowering thresholds or treating unequal candidates as equal to justify a particular outcome is likely to be unlawful. Employers should apply objective selection criteria and document decisions carefully.
Implementing Positive Action Lawfully
Step 1: Analyse Workforce Data
Start by collecting and analysing workforce data to identify potential underrepresentation or disadvantage relative to the wider labour market or organisational aims. Reliable data helps form a sound basis for positive action decisions.
Step 2: Set Clear Objectives
Positive action should have clear objectives (for example, increasing representation in leadership roles) and a defined time period for achieving them. Documenting goals and rationale supports transparency and proportionality.
Step 3: Choose Appropriate Measures
Select positive action measures that directly relate to overcoming the identified disadvantage or encouraging participation. These may include targeted training, mentoring, outreach or, in recruitment contexts, tie‑breaker preference among equal candidates.
Step 4: Monitor and Review
Monitor the impact of positive action initiatives and review them periodically. If conditions that justified the action no longer apply, continuing the measures may no longer be proportionate and could expose the employer to legal challenge.
Key Takeaways
Positive action in the workplace under the Equality Act 2010 allows employers in England and Wales to take lawful, targeted steps to support groups with a protected characteristic who are disadvantaged, underrepresented or have unmet needs. It operates as an exception to usual anti‑discrimination rules and must be reasonable, proportionate and evidence‑based. Employers must avoid positive discrimination, ensure measures are applied appropriately and monitor their impact over time. Careful planning, consultation and documentation help reduce legal risk while advancing workplace equality.
