Positive Action vs Positive Discrimination: Rules & Risks in 2026

Employers are under a legal duty not to unlawfully discriminate against prospective or existing employees because of a protected characteristic.

However, that is not to say employers cannot take ‘positive action’ to assist certain groups of people that are potentially at a disadvantage or under-represented within their workforce.

Positive action is a limited exception under sections 158 and 159 of the Equality Act 2010. It allows employers to take proportionate steps to address disadvantage, different needs or underrepresentation affecting people who share a protected characteristic. It does not permit automatic preference or quota systems. Positive action is generally a permission rather than a legal requirement.

In this article we examine what amounts to taking positive action within the workplace and how this differs from positive discrimination -given the former is permitted while the latter remains unlawful, as well as how positive action can be beneficial to both your business and your workforce as a whole.

Section A: What Is Positive Action Under UK Law?

Positive action is a statutory exception within the discrimination framework of the Equality Act 2010. The starting position under the Act is that treating someone less favourably because of a protected characteristic amounts to direct discrimination and will generally be unlawful.

Under the Equality Act 2010 a protected characteristic includes age; disability; gender reassignment; marriage and civil partnership; pregnancy and maternity; race; religion or belief; sex; and sexual orientation.

Sections 158 and 159 create limited circumstances in which differential treatment connected to a protected characteristic can be lawful. The scope of that exception is defined and conditional. It does not authorise automatic preference and it does not displace merit-based assessment.

The analysis is evidence-led. An employer or organisation considering positive action needs to identify the statutory gateway relied upon, demonstrate a reasonable evidential basis and ensure that the proposed measure is proportionate.

1. Statutory basis under the Equality Act 2010

Section 158 permits an employer to take proportionate steps where it reasonably believes that persons who share a protected characteristic suffer disadvantage connected to that characteristic, have needs that differ from others or are disproportionately underrepresented in a particular activity. The statutory test focuses on reasonable belief rather than definitive proof, but the belief should be grounded in identifiable evidence. Workforce data, recruitment outcomes, progression patterns or sector information may support that assessment.

Section 159 operates in a narrower context. It applies to recruitment and promotion and allows an employer, in limited circumstances, to treat a candidate with a protected characteristic more favourably than another candidate if the employer reasonably believes that disadvantage or underrepresentation exists, the candidates are equally qualified and the step taken is proportionate. The provision is often described as a tie-break mechanism. It does not permit quota systems or pre-determined policies of always preferring one group over another.

The distinction between sections 158 and 159 is material in employment practice. Section 158 supports measures that widen access or address barriers. Section 159 affects selection outcomes and therefore attracts closer scrutiny.

2. What conditions have to be satisfied?

Three elements underpin lawful positive action in employment. First, there should be a reasonable belief of disadvantage, different need or underrepresentation. General aspirations for greater diversity do not meet that threshold on their own. The employer should be able to explain how the evidence supports the conclusion reached.

Second, the measure adopted should be proportionate. The step taken needs to be suitable for addressing the identified issue and should go no further than reasonably necessary. In employment terms, proportionality will often be assessed by reference to the impact on other applicants or workers and the availability of less intrusive alternatives.

Third, the action cannot amount to automatic preference. Under section 159, preferential treatment is only within scope where candidates are genuinely equally qualified when assessed against objective criteria. A standing rule of always selecting from an underrepresented group would fall outside the statutory exception and risk a finding of unlawful discrimination.

3. Is positive action a legal requirement in the UK?

Positive action is generally a permission rather than a duty. The Equality Act 2010 allows employers and organisations to take positive action where the statutory conditions are met. It does not ordinarily require them to do so.

Public authorities are subject to the public sector equality duty under section 149 of the Equality Act 2010, which requires due regard to the need to eliminate discrimination and advance equality of opportunity. In practice, that duty may lead a public body to consider whether positive action is appropriate. Any measure adopted, however, remains subject to the statutory requirements of reasonable belief and proportionality and does not remove the prohibition on unlawful direct discrimination.

Positive action therefore operates as a controlled legal exception within the wider discrimination regime. Its lawfulness depends on evidence, a disciplined application of the statutory tests and careful design of any measure that affects recruitment or promotion decisions.

Section B: Positive Action vs Positive Discrimination

The legal boundary between positive action and positive discrimination is defined by the actual structure of the Equality Act 2010. Direct discrimination occurs where a person is treated less favourably because of a protected characteristic. That remains unlawful unless a specific statutory exception applies. Positive action is one such exception.

Positive discrimination, in most circumstances, is simply direct discrimination by another name.

The distinction matters most in recruitment and promotion, where decision-making produces a clear comparator and an unsuccessful candidate can point to differential treatment.

1. What is positive discrimination?

Positive discrimination arises where an employer gives automatic or pre-determined preference to individuals because they share a protected characteristic, outside the confines of sections 158 or 159. If a policy provides that candidates from a particular group will be appointed or promoted in preference to others irrespective of comparative merit, that policy is likely to amount to direct discrimination.

The Equality Act 2010 does not authorise general quota systems in employment. The Act permits targeted measures to address disadvantage, but it does not permit outcomes to be fixed in advance by reference to protected status alone. A tribunal assessing such a policy will examine whether the decision was taken because of the individual’s protected characteristic rather than because they were the strongest candidate under the employer’s criteria.

2. The recruitment tie-break under section 159

Section 159 provides a narrow exception within recruitment and promotion. Where an employer reasonably believes that disadvantage or underrepresentation exists, it may treat a candidate with a protected characteristic more favourably than another candidate if the candidates are equally qualified and the action is proportionate.

The concept of equal qualification is central. It requires an objective assessment against the employer’s published criteria. The candidates do not need identical backgrounds, but the employer should be able to show that neither candidate was demonstrably stronger when measured against the role requirements. A superficial assertion of equality will not suffice if contemporaneous scoring or interview notes suggest otherwise.

The decision also needs to be made on a case-by-case basis. A standing rule that always prefers candidates from an underrepresented group would fall outside section 159. The statute permits a tie-break, not a presumption.

If candidates are not genuinely equally qualified when assessed against objective criteria, section 159 cannot lawfully be invoked. Selecting a weaker candidate because of protected status would ordinarily amount to direct discrimination. The equality of qualification analysis therefore operates as a strict gateway rather than a discretionary preference.

3. How tribunals analyse the distinction

Where a rejected applicant alleges discrimination, the tribunal will consider whether there are facts from which it could conclude that less favourable treatment occurred because of a protected characteristic. If so, the burden may shift to the employer to provide a non-discriminatory explanation. In a positive action case, that explanation will usually rely on sections 158 or 159.

The tribunal will then examine three linked questions. It will consider whether the employer had a reasonable evidential basis for believing disadvantage or underrepresentation existed. It will assess whether the candidates were genuinely equally qualified where section 159 is invoked. It will scrutinise whether the measure adopted was proportionate in light of the stated aim.

If the employer cannot demonstrate a disciplined application of those statutory tests, the defence of positive action is unlikely to succeed. The dividing line between lawful positive action and unlawful positive discrimination therefore turns on evidence, objective assessment and the absence of automatic preference.

Section C: When Can Employers Lawfully Take Positive Action?

In employment, positive action sits inside the Equality Act 2010 discrimination architecture rather than outside it. The starting point is that less favourable treatment because of a protected characteristic is direct discrimination and will usually be unlawful. Positive action is an exception that only operates where an employer can justify, with evidence, that the statutory gateway applies and that the measure goes no further than is reasonably necessary. The legal risk increases when a measure affects recruitment or promotion outcomes, because the decision becomes a comparator exercise in which the unsuccessful candidate can allege unlawful treatment.

1. Evidence of disadvantage or underrepresentation

Section 158 permits positive action where an employer reasonably believes that workers or applicants who share a protected characteristic suffer disadvantage connected to that characteristic, have different needs or are disproportionately underrepresented in an activity. In practice, the “reasonable belief” threshold is not satisfied by broad statements about inequality. It is usually supported by internal workforce and recruitment data, progression and retention patterns, pay gap analysis, complaints or grievance themes and, where appropriate, sector-level evidence that maps onto the employer’s own context.

The employment law point is that the evidence needs to relate to the activity the measure targets. If the employer relies on underrepresentation across the whole business but introduces a measure aimed at one grade, function or recruitment stage, the chain of reasoning needs to be clear. A tribunal assessing a challenged initiative will typically focus on whether the employer can explain why the evidence justified action in that specific area, as opposed to a general aspiration for diversity.

2. Lawful examples of positive action

Measures that widen access without determining outcomes are usually lower risk. Targeted outreach, open days, mentoring and training aimed at helping underrepresented groups compete on equal footing can fall within section 158 where the evidence supports the aim and the programme remains proportionate. The employment law safeguard is that selection decisions continue to be made against pre-set criteria, with records that show how those criteria were applied.

Where an employer moves from encouraging participation to influencing an appointment decision, section 159 becomes relevant. In recruitment or promotion, more favourable treatment is only within scope where the employer reasonably believes underrepresentation or disadvantage exists, the candidates are equally qualified on the employer’s criteria, the decision is a proportionate means of addressing the issue and there is no standing policy of automatic preference. Equality of qualification is not a rhetorical label. It needs an objective, documented assessment against the role requirements, otherwise the employer is exposed to an argument that the preferred candidate was selected because of protected status rather than merit.

Certain targeted programmes will require particular care. Internships or training schemes limited to underrepresented groups may fall within section 158 if supported by evidence and if participation does not guarantee appointment. Leadership development programmes aimed at addressing documented disadvantage may also be lawful where proportionate. The legal risk increases where participation directly determines promotion or appointment outcomes.

3. Proportionality and evidential risk

Proportionality is where many initiatives fail. A measure can be aimed at a legitimate equality objective but still be unlawful if it is broader than necessary, applied too rigidly or maintained after the evidential basis has fallen away. In employment terms, proportionality is assessed against the impact on other applicants or workers and the availability of less intrusive alternatives, such as outreach or development support that does not affect selection outcomes.

Employers should retain contemporaneous records demonstrating the evidential basis for the measure, the proportionality assessment undertaken and the reasoning applied to any recruitment or promotion decision relying on section 159.

If a rejected applicant brings a claim, the burden-shifting framework under the Equality Act can require the employer to provide a clear non-discriminatory explanation supported by contemporaneous records. For positive action, that typically means keeping a paper trail of the evidence relied upon, the decision pathway that links evidence to measure and the recruitment or promotion assessment that supports any tie-break decision. The practical effect is that positive action is most defensible where the employer can show a disciplined link between evidence, design and outcome, and where outcome-affecting decisions are genuinely confined to the narrow section 159 scenario.

Positive action does not ordinarily extend to redundancy selection. Using protected characteristics as a factor in determining dismissal is highly likely to amount to direct discrimination unless a specific statutory defence applies. Employers should treat redundancy decisions as legally distinct from recruitment tie-break scenarios.

Section D: Positive Action in Practice – Employment, Housing and Public Functions

Positive action does not operate in a vacuum. Its application differs depending on whether the context is employment, housing allocation or the exercise of public functions. The statutory gateway remains sections 158 and 159 of the Equality Act 2010, but the comparator analysis and proportionality assessment will vary according to the regulated activity in question.

1. Employment and recruitment

In employment, the risk profile is highest at the point of selection. Outreach initiatives, targeted training or mentoring schemes will often fall within section 158 where there is evidence of disadvantage or underrepresentation and where participation does not determine appointment outcomes. The legal focus remains on whether the employer can demonstrate a reasonable belief grounded in identifiable data and whether the measure addresses the specific disadvantage identified.

Where a recruitment decision is affected, section 159 becomes central. The employer needs to show that candidates were equally qualified on objective criteria and that any more favourable treatment was proportionate. Interview scoring matrices, shortlisting records and documented decision notes are frequently examined in tribunal proceedings. A decision framed loosely as “diversity-led” without clear reference to equal qualification and proportionality is unlikely to withstand scrutiny.

The employment context also requires attention to internal communications. Statements suggesting predetermined targets or guaranteed outcomes for particular groups may be relied upon as evidence that the organisation operated a blanket policy rather than a case-specific tie-break.

2. Housing allocation and service provision

In housing and service provision, the analysis shifts from employment comparators to access and allocation decisions under Part 3 of the Equality Act 2010. Providers may consider positive action where there is evidence that individuals sharing a protected characteristic face particular disadvantage in accessing housing or related services. Targeted outreach, information campaigns or support initiatives may fall within section 158 where proportionate.

Allocation decisions require particular care. If a housing provider gives priority solely because of a protected characteristic without a statutory basis, that approach risks amounting to direct discrimination. The provider would need to demonstrate that any differential treatment falls squarely within the positive action provisions and that the measure is proportionate to the identified disadvantage. The absence of documented evidence linking the measure to a defined need will weaken that defence.

3. Public authorities and the Equality Duty

Public authorities operate within the additional framework of the public sector equality duty under section 149 of the Equality Act 2010. The duty requires due regard to the need to eliminate discrimination and advance equality of opportunity. Advancing equality of opportunity may include consideration of measures that remove or minimise disadvantage or encourage participation by underrepresented groups.

The duty, however, does not displace the prohibition on unlawful discrimination. A public body cannot justify automatic preference on the basis that it is pursuing equality objectives. Any positive action adopted by a public authority remains subject to the same statutory conditions of reasonable belief and proportionality. Courts reviewing public sector decisions will examine both compliance with the equality duty and the application of the positive action provisions.

Section E: Legal Risks, Challenges and Compliance Safeguards

Positive action frequently fails not because the aim is illegitimate, but because the statutory tests are applied loosely. The Equality Act 2010 creates a narrow exception to the prohibition on direct discrimination. Where an employer cannot demonstrate disciplined adherence to that exception, the measure is likely to be characterised as unlawful discrimination.

In practice, claims tend to arise from recruitment and promotion decisions, where a rejected candidate can point to a comparator and allege less favourable treatment.

1. Common legal errors

One recurring error is reliance on general policy statements rather than activity-specific evidence. A broad commitment to improving diversity does not establish a reasonable belief of disadvantage within a particular role, grade or function. Tribunals will expect to see evidence that relates to the activity affected by the measure.

Another error is the introduction of de facto quotas. Language in policies or internal communications that implies guaranteed outcomes for particular groups can undermine reliance on sections 158 or 159. The statute permits proportionate steps and, in limited cases, a tie-break. It does not authorise predetermined allocation of roles.

Employers also expose themselves to risk where they assert that candidates were equally qualified without contemporaneous documentation supporting that assessment. Interview scoring that clearly differentiates candidates will make it difficult to defend a section 159 decision.

Indicators that positive action may cross into unlawful discrimination include reliance on broad diversity objectives without activity-specific evidence, the absence of documented assessment of equal qualification, policies that operate as standing preferences and measures that continue without periodic review. Where outcome-driven targets replace case-specific statutory analysis, the defence of positive action is unlikely to succeed.

2. Tribunal exposure and burden of proof

In discrimination claims, the burden of proof framework is significant. If a claimant establishes facts from which a tribunal could conclude that discrimination occurred, the burden may shift to the employer to prove that the treatment was not because of a protected characteristic or that it fell within a statutory exception.

Where positive action is relied upon, the employer’s defence will depend on demonstrating three linked elements. It will need to show a reasonable evidential basis for believing disadvantage or underrepresentation existed. It will need to show that any recruitment or promotion decision was confined to a genuine equality of qualification under section 159 where applicable. It will also need to show that the measure was proportionate in light of its aim and impact.

The absence of documentary evidence frequently determines the outcome.

3. How employers should implement positive action lawfully

Before introducing any positive action measure, an employer should define the activity to which it relates. The statutory analysis differs depending on whether the proposal concerns outreach, training, recruitment, promotion or service delivery. A measure affecting selection outcomes attracts closer scrutiny than one aimed at widening participation.

The evidential threshold should then be examined. Employers should identify internal workforce data, recruitment ratios, promotion statistics, pay gap analysis or sector benchmarks that demonstrate disadvantage or underrepresentation in the relevant activity. Where grievance patterns or complaints indicate structural barriers, those should also be documented. The reasonable belief required under sections 158 or 159 should be traceable to identifiable material rather than general policy aspiration.

The employer should then articulate the link between the identified disadvantage and the proposed intervention. Tribunals examine whether the measure adopted logically addresses the specific issue identified and whether a less intrusive alternative was available. The reasoning chain between evidence, intervention and proportionality should be capable of explanation.

Where recruitment or promotion decisions may be affected, objective pre-set criteria should be applied consistently. Scoring should be recorded contemporaneously. If section 159 is relied upon, the assessment demonstrating that candidates were equally qualified should be documented clearly. No standing rule of automatic preference should operate.

Positive action measures should not remain indefinite without review. Periodic reassessment of workforce data is advisable. If the evidential basis weakens or disappears, continuation of the measure may no longer be proportionate. Sunset clauses or review triggers can assist in demonstrating ongoing compliance.

4. Policy drafting and internal communications risk

Internal policies and communications frequently determine how a tribunal characterises a measure. Language implying guaranteed outcomes for particular groups may undermine reliance on sections 158 or 159. References to fixed targets or automatic advancement risk suggesting a quota system rather than a case-specific statutory exception. Employers should ensure that diversity strategies are clearly distinguished from recruitment decision rules. Any policy referencing positive action should identify the statutory basis relied upon and confirm that measures will be evidence-based, proportionate and subject to review. Informal statements by managers suggesting predetermined preferences can materially weaken a legal defence.

Section F: Summary

Positive action is a limited statutory exception within the Equality Act 2010, not a general licence to favour one group over another. Its legality depends on evidence of disadvantage or underrepresentation, a proportionate response and, in recruitment or promotion, a genuine equality of qualification where section 159 is relied upon. Where it becomes aspirational rhetoric or outcome-driven policy without statutory discipline, any such defence is unlikely to hold weight.

Section G: Need Assistance?

DavidsonMorris’ employment lawyers can help with all aspects of workplace discrimination. Working closely with our specialists in HR, we can advise on positive steps to improve diversity and equality in your organisation, while minimising the legal risk of discrimination claims. For help and advice, speak to our experts.

Section H: Positive action FAQs

What is positive action in UK law?

Positive action is a statutory exception under sections 158 and 159 of the Equality Act 2010. It allows proportionate steps to address disadvantage, different needs or underrepresentation affecting people who share a protected characteristic. It does not permit automatic preference and remains subject to strict conditions.

Is positive action a legal requirement in the UK?

Positive action is generally a permission rather than an obligation. Employers and organisations may rely on it where the statutory tests are satisfied. Public authorities are subject to the public sector equality duty, which may require consideration of equality impacts, but that duty does not mandate unlawful preferential treatment.

What is the difference between positive action and positive discrimination?

Positive action is permitted within defined statutory limits. Positive discrimination, in most circumstances, is unlawful direct discrimination. The key distinction is that positive action requires evidence of disadvantage and proportionality, and in recruitment only allows more favourable treatment where candidates are equally qualified and the decision is taken case by case.

Can an employer use quotas under positive action?

The Equality Act 2010 does not authorise general quota systems in employment. A standing policy that guarantees roles to individuals because of a protected characteristic is likely to amount to direct discrimination unless a specific statutory exception applies.

When can an employer rely on the recruitment tie-break rule?

An employer may rely on section 159 where it reasonably believes disadvantage or underrepresentation exists, candidates are equally qualified against objective criteria and the decision is proportionate. The assessment should be documented and taken on a case-by-case basis rather than under a blanket rule.

What evidence is needed to justify positive action?

The employer should have a reasonable evidential basis for believing that disadvantage, different need or underrepresentation exists in the relevant activity. Workforce data, recruitment statistics, progression patterns or sector information may support that belief. Unsupported assumptions are unlikely to satisfy the statutory threshold.

Section I: Glossary

Section J: Useful links