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What “Positive Action” is Permitted Under Discrimination Legislation?

A key difference between positive action and positive discrimination is that positive action is lawful, provided that the employer meets the conditions set out in section 158 or 159 of the Equality Act 2010, whereas positive discrimination, generally, is not lawful.

In the context of recruitment, unlawful positive discrimination would be where an employer recruits a person because he or she has a relevant protected characteristic rather than because he or she is the best candidate. It is also unlawful, for example, to set quotas to recruit or promote a specific number or proportion of people with a particular protected characteristic. However, there are circumstances in which it is lawful to require a job applicant to have a particular protected characteristic, for example where an occupational requirement applies.

Positive action is lawful if it is taken to:

  • Enable or encourage people who share a protected characteristic to overcome a disadvantage connected to the characteristic;
  • Enable or encourage people who share a protected characteristic to participate in an activity in which their participation is disproportionately low;
  • Meet the needs of people who share a protected characteristic where those needs are different to those of people who do not have the characteristic;

The employer can encourage people from disadvantaged groups to apply for work and can provide training to help equip them for the particular work, but the decision on whom to select must be made on merit alone, except in circumstances where the candidates are “as qualified as” each other and section 159 applies.

Section 159 of the Equality Act 2010 allows an employer to treat an applicant or employee with a protected characteristic more favourably in connection with recruitment or promotion than someone without that characteristic who is as qualified for the role. The employer must reasonably think that people with the protected characteristic suffer a disadvantage or are under-represented in that particular activity. Taking the positive action must be a proportionate means of enabling or encouraging people to overcome the disadvantage or to take part in the activity. Employers must not have a policy of treating people who share a characteristic more favourably; they should decide whether or not to take positive action on a case-by-case basis.

Please note that the position in relation to positive action in favour of disabled people is different because it is not unlawful to discriminate in favour of a disabled person and employers have a positive duty to make reasonable adjustments to compensate for disadvantages related to disability.

If you need any help and advice in relation to seasonal workers, please do not hesitate to contact me or the employment team on 0113 350 4030 or at hello@scesolicitors.co.uk.

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SCE Solicitors is a boutique employment law practice based in Leeds which advises clients nationwide.  Please note that the information in this blog is to provide information of general interest in a summary manner and should not be construed as individual legal advice. Readers should consult with SCE Solicitors or other professional counsel before acting on the information contained here.

Richard Newstead

Richard qualified as a Legal Executive over 20 years ago and has significant experience in Employment law and Litigation.

Richard acts for both employers and employees drafting and advising on settlement agreements, contracts of employment, consultancy agreements, directors service agreements and general workplace policies. He acts for commercial clients in the employment tribunal dealing with unfair dismissals, constructive dismissals and claims for discrimination.
Richard Newstead

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Richard Newstead

Richard qualified as a Legal Executive over 20 years ago and has significant experience in Employment law and Litigation. Richard acts for both employers and employees drafting and advising on settlement agreements, contracts of employment, consultancy agreements, directors service agreements and general workplace policies. He acts for commercial clients in the employment tribunal dealing with unfair dismissals, constructive dismissals and claims for discrimination.

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