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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.

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