A Guide To Positive Discrimination For Employers [With Examples]

Employers often use the phrase positive discrimination when they are really talking about positive action, and that distinction matters. In the UK, positive discrimination is generally unlawful, while positive action can be a lawful and practical way to improve workplace equality when it is evidence-based, proportionate and used correctly.

For small and mid-sized businesses, this is not just a legal technicality. It affects how you write job adverts, design development programmes, make recruitment decisions and build a fairer workplace without exposing your business to unnecessary legal risk.

In this guide

This guide explains what positive discrimination means, how it differs from positive action, when positive action may be lawful, and what employers should avoid in recruitment and promotion decisions.

It also covers practical examples, the legal tests under the Equality Act 2010, common mistakes, and a simple compliance checklist that adds a more practical framework for employers reviewing their own HR processes.

Key takeaways

• Positive discrimination usually means favouring someone because of a protected characteristic, and this is generally unlawful in UK employment law.
• Positive action is different: it allows proportionate steps to reduce disadvantage, meet different needs or address under-representation for people who share a protected characteristic.
• Positive action is not a legal requirement in the UK, but it is permitted where the legal conditions are met and can help employers create fairer access to opportunities.
• In recruitment and promotion, an employer can only use positive action as a tie-breaker where candidates are genuinely of equal merit and there is no blanket policy of automatic preference.
• Good evidence, clear documentation and manager training are essential if your business wants to use positive action lawfully and confidently.

What is positive discrimination?

In practice, positive discrimination means giving someone favourable treatment because they have a protected characteristic such as sex, race, age or religion, rather than because they are the best candidate on merit. In UK employment law, that approach is generally unlawful except in limited situations.

The Equality Act 2010 does not create a broad right for employers to recruit or promote people simply to improve diversity figures. If a business appoints or advances someone purely because they belong to an under-represented group, and the legal conditions for positive action are not met, that can amount to unlawful direct discrimination against others.

Positive discrimination examples

Examples of likely unlawful positive discrimination include appointing a candidate because they are from an ethnic minority despite another candidate being stronger on skills and experience, promoting someone mainly because they are a woman in order to improve gender balance, or reserving jobs for people with a particular protected characteristic without lawful justification.

Another example would be using quotas that require a fixed number or percentage of hires from a protected group regardless of merit. UK guidance distinguishes these from lawful targets, which may be used to monitor progress but should not override merit-based decision-making.

Positive action vs positive discrimination

The difference between positive action and positive discrimination is one of the most important points for employers to understand. Positive action is lawful in certain circumstances; positive discrimination is generally unlawful.

Positive action allows an employer to take proportionate steps to help people who share a protected characteristic where there is evidence that they are disadvantaged, have different needs, or are under-represented in the workplace or a particular activity. Positive discrimination goes further by giving automatic or unjustified preference because of that characteristic, which the law usually prohibits.

For example, it can be lawful to run outreach activity aimed at encouraging more women into engineering roles where women are under-represented. It would usually be unlawful to guarantee that the next engineering vacancy will go to a woman regardless of comparative merit.

What is the difference between positive action and positive discrimination?

A simple way to explain the difference is this: positive action broadens access, while positive discrimination predetermines outcomes. Positive action supports people to compete fairly; positive discrimination risks bypassing fair competition altogether.

That means positive action can include targeted advertising, mentoring, training, networking opportunities and, in narrow cases, using protected characteristics as a tie-breaker between candidates of equal merit. By contrast, positive discrimination includes blanket policies, automatic preferences and appointing someone less qualified because of a protected characteristic.

Is positive action a legal requirement in the UK?

No. Positive action is not a legal requirement in the UK. Government guidance states that it is entirely voluntary, although public sector employers may still consider it as part of wider equality objectives and duties.

For private sector and SME employers, the key point is that positive action is available as a lawful option, not an obligation. You do not have to use it, but where there is clear evidence of disadvantage or under-representation, it can be a useful part of a broader equality, recruitment and retention strategy.

The legal framework employers need to know

The main rules sit within the Equality Act 2010. The Act protects people from discrimination linked to protected characteristics including age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation.

For positive action, the two key provisions are section 158 and section 159. Section 158 allows general positive action measures to reduce disadvantage, meet different needs or improve participation, while section 159 deals specifically with recruitment and promotion tie-break situations involving candidates of equal merit.

When positive action may be lawful

An employer may use positive action where it reasonably thinks that people who share a protected characteristic experience a disadvantage, have needs that are different from others, or participate in an activity at a disproportionately low level. The response must also be proportionate, which means it should be a fair and measured way of achieving the aim.

The evidence does not always need to be highly technical. Employers can rely on workforce data, sector information, recruitment patterns, staff feedback and other credible information, provided the reasoning is genuine and documented.

Examples of lawful positive action

Lawful positive action can include placing job adverts in publications aimed at under-represented groups, adding inclusive wording to encourage applications from those groups, offering targeted mentoring or development opportunities, or running outreach events to improve participation in a profession or role type.

It can also include creating support initiatives for staff who share a protected characteristic where there is evidence of disadvantage or different needs. For example, guidance refers to mentoring for disabled employees or targeted initiatives encouraging women into sectors where they are under-represented.

Positive action in recruitment and promotion

Recruitment and promotion decisions need particular care. Under section 159, positive action can only be used where an employer reasonably believes a group is disadvantaged or under-represented, the candidates are genuinely of equal merit, and choosing the candidate from that group is a proportionate way of addressing the issue.

This is often called a tie-breaker provision. It does not allow a business to operate a policy of always selecting candidates from a particular group, nor does it allow decision-makers to ignore objective assessment criteria.

Examples of what employers should avoid

Employers should avoid setting quotas for hires or promotions, guaranteeing that roles will go to candidates from specific groups, or treating all candidates above a low pass mark as automatically equal in order to justify preference. Those approaches create significant legal risk because they can amount to direct discrimination.

A practical framework for SMEs

For many SMEs, the safest and most effective approach is to treat positive action as part of a wider people strategy rather than as a one-off recruitment shortcut.

A practical internal framework could include:

• Reviewing workforce and recruitment data at least annually to identify under-representation or barriers.
• Auditing job adverts, person specifications and interview criteria for avoidable bias or unnecessary barriers.
• Training hiring managers on the difference between lawful positive action and unlawful positive discrimination.
• Recording the evidence behind any targeted initiative so there is a clear rationale if decisions are challenged.
• Measuring whether initiatives improve applicant diversity, progression or retention over time rather than assuming they work.

For SMEs without an in-house legal or HR team, simple governance and documentation can make the difference between a well-intentioned initiative and an avoidable dispute.

Why documentation matters

One of the most practical ways to reduce risk is to document the evidence, reasoning and proportionality behind your approach. If your business uses positive action, managers should be able to explain what problem was identified, what evidence supported it, why the chosen step was proportionate and how merit was protected in recruitment and promotion decisions.

This is especially important where hiring decisions may later be challenged by unsuccessful applicants. A clear paper trail helps show that the business acted thoughtfully, consistently and within the boundaries of the law.

Disability and more favourable treatment

Disability is an area where employers need to be particularly careful not to oversimplify the rules. The Equality Act allows disabled people to be treated more favourably than non-disabled people, and employers also have a legal duty to make reasonable adjustments where needed.

That makes disability different from most other protected characteristics in this context. Reasonable adjustments are not the same as unlawful positive discrimination; they are a recognised and often mandatory part of ensuring fair access to work and progression.

Common employer mistakes

A common mistake is assuming that a genuine desire to improve diversity automatically makes a recruitment decision lawful. In reality, intention alone is not enough; employers still need evidence, proportionality and a fair process.

Another common error is confusing targets with quotas. Targets can help businesses track whether they are improving representation, but quotas that determine outcomes regardless of merit are much more likely to cross the legal line.

Speak to Norton Loxley

If your business is reviewing hiring practices, updating equality policies or wants clearer guidance on positive discrimination and positive action, Norton Loxley can help you turn legal principles into practical steps. We work with employers to make policies clearer, recruitment processes safer and people strategies easier to apply in the real world.

If you need additional HR support, contact Norton Loxley today.

FAQs

What is positive discrimination?

Positive discrimination usually means giving someone favourable treatment because of a protected characteristic rather than because they are the strongest candidate on merit. In UK employment law, this is generally unlawful except in limited situations.

What are some positive discrimination examples?

Examples include hiring someone because they are from an under-represented ethnic group despite another candidate being stronger, promoting someone mainly because of their sex to improve balance, or applying quotas that override merit.

What is positive action?

Positive action is a lawful way for employers to take proportionate steps to reduce disadvantage, meet different needs or tackle under-representation for people who share a protected characteristic. It is allowed under the Equality Act 2010 in specific circumstances.

What is the difference between positive action and positive discrimination?

Positive action helps widen access and opportunity in a proportionate way, while positive discrimination gives unjustified preference because of a protected characteristic. The first can be lawful; the second is generally unlawful.

Is positive action a legal requirement in the UK?

No. Positive action is voluntary, not mandatory. Employers can choose to use it where the legal tests are met, but they are not required to do so.

Can an employer hire someone because they are from an under-represented group?

Only in very limited tie-break situations where candidates are genuinely of equal merit and the legal conditions for positive action are met. Employers cannot lawfully appoint a less qualified candidate simply because they share a protected characteristic.

Are quotas allowed in UK recruitment?

Quotas that determine outcomes regardless of merit are generally not lawful in this context. Employers may use targets to monitor progress, but they should not use fixed quotas that bypass fair assessment.

Does positive action apply only to recruitment?

No. Positive action can also apply to training, outreach, mentoring, progression support and other steps designed to reduce disadvantage, meet different needs or increase participation.