What is positive discrimination?

There are legitimate steps you can take to ensure a more diverse workplace, but it’s important to understand what amounts to positive discrimination as well as how it differs from positive action.

Defining positive discrimination

Positive discrimination is the act of favouring someone based on a ‘protected characteristic’.

The protected characteristics are set out in the Equality Act 2010 as:

age
disability
gender reassignment
marriage and civil partnership
pregnancy and maternity
race
religion or belief
sex and sexual orientation

An example of positive discrimination is to hire or promote someone with a disability to increase the number of people with disabilities in the workforce, despite another candidate for the job being better qualified.

Treating someone favourably because of a protected characteristic is normally prohibited and regarded as discriminatory; when you positively discriminate in one person’s favour, by default, you discriminate against someone else.

Setting quotas to recruit or promote a specific number or proportion of people with a particular protected characteristic can also give rise to discrimination for the same reason.

While positive discrimination is often thought of in respect of recruitment practices, it is not limited to this. The rules can be applied equally to promotion or other employee opportunities.

Exceptions to restrictions on discriminatory practices

An occupational requirement

There are some (very limited) circumstances where selection must be limited to specific groups. For example: at a women’s refuge, employees must be female due the sensitivities and issues surrounding the role.

Positive action

Positive action is different to positive discrimination. Under the Equality Act 2010, you can take positive action to help under-represented groups who share protected characteristics overcome disadvantages or to remove barriers to employment.

If an employer offers a job to someone specifically because they are from a marginalised community, although a different candidate was better qualified, this amounts to positive discrimination and is not allowed.

However, if an employer advertises a job within publications targeting specific communities or runs training events and workshops that help individuals from certain communities overcome barriers preventing them from applying for particular positions, or encourages them to do so, these could be examples of positive action, which is permissible.

Positive action of this type must be proportionate and reasonable, while allowing employers to take steps to help employees or job applicants where:

They are potentially at a disadvantage because of a protected characteristic,
They are under-represented in a company or organisation, or participation is disproportionately low, because of a protected characteristic,
They have specific needs connected to a protected characteristic.

Positive action can also be taken in these cases by treating a person with the relevant characteristic more favourably than others in recruitment or promotion, provided the person with the relevant characteristic is ‘as qualified’ as those others.

Employers: be aware of the differences

There is a fine line between positive discrimination, which is unlawful, and positive action, which is permissible.

It will hardly ever be the case that one person is exactly ‘as qualified’ as another, and it is very easy for positive action to look like positive discrimination.

We would strongly advise speaking to a legal expert before embarking on either course of action.

The consequences of positive discrimination and positive action

Not only is positive discrimination unlawful; it can also generate resentment within the workplace.

If an employee feels they have been treated less favourably (e.g. passed over for a promotion or opportunity) because of a protected characteristic, they may also decide to bring a claim for unlawful discrimination in a tribunal.

The opposite is likely to be true with positive action, which often improves job satisfaction and loyalty.

Understanding positive discrimination and positive action

The difference between positive discrimination and positive action is not always easy to identify. Putting in place a clear policy relating to recruitment and promotion is essential.

If you would like to discuss the best way for your organisation to take positive action, concerned about a potential claim in respect of positive discrimination, or you are an employee who feels they have been discriminated against, please get in touch. Our team of experienced employment law solicitors are on-hand to help.

< Older Post Newer Post >

A black and white photo of the big ben clock tower

Labour’s First 100 Days in Employment Law: A review of Progress to Date and What Lies ahead in the next 12 – 24 months

By Louise Maynard • October 28, 2024

The Labour Party came into power in 2024 with a promise of substantial reforms aimed at enhancing worker’s rights, improving work-life balance, and addressing inequalities in the workplace.

A woman is sitting in a chair talking to a man.

Supporting Mental Health in the Workplace: A Legal Framework for Employers

By Yeing-Lang Chong • October 10, 2024

Mental health is an increasingly important issue in the workplace, affecting employees’ wellbeing, productivity, and overall satisfaction. As more employees speak up about their struggles, UK employers must ensure they are providing a supportive environment while adhering to legal responsibilities. The legal framework surrounding mental health in the workplace is clear, but understanding how to apply it practically is key to preventing discrimination and promoting a healthy work culture. With World Mental Health Day on 10th October, now is the perfect time for employers to review their obligations and strategies for supporting mental health in the workplace.

An empty office with a desk and chair in front of a window.

Handling Mental Health-Related Absences: Best Practices and Legal Obligations

By Yeing-Lang Chong • October 9, 2024

Handling Mental Health-Related Absences: Best Practices and Legal Obligations Mental health-related absences are a common challenge for employers, as mental health conditions can lead to prolonged or frequent time off work. Understanding how to handle these absences with compassion while fulfilling legal obligations is crucial for maintaining a supportive work environment and avoiding potential legal pitfalls. As we approach World Mental Health Day on 10th October, this article outlines best practices and key legal responsibilities for UK employers when managing mental health-related absences.

A woman is comforting a man who is sitting at a desk with his head in his hands.

Mental Health Discrimination in the Workplace: UK Legal Protections

By Emily Kidd • October 8, 2024

In the UK, mental health discrimination in the workplace is a growing concern as more employees speak up about their struggles with mental health issues. World Mental Health Day, observed on 10th October, provides an opportunity to reflect on the legal protections in place to safeguard employees from discrimination and to promote mental wellbeing in the workplace. This article will explore the legal framework surrounding mental health discrimination, including how the law defines mental health disabilities, employers' responsibilities, and steps businesses can take to prevent discrimination.

A man is sitting in a chair while two women comfort him.

Reasonable Adjustments for Mental Health: A Guide for UK Employers

By Marianne Wright • October 7, 2024

Supporting employees with mental health conditions is not just an ethical responsibility for UK employers; it’s a legal obligation under the Equality Act 2010. As we approach World Mental Health Day on 10th October, it’s crucial for employers to understand what reasonable adjustments are, how they can be applied to mental health, and the steps they should take to comply with UK law while fostering an inclusive and supportive work environment.

A group of people are sitting around a table with their hands on each other.

How the Equality Act Protects Employees with Mental Health Conditions

By Marianne Wright • October 7, 2024

The Equality Act 2010 is a key piece of legislation in the UK that aims to protect employees from discrimination in the workplace. While much of the focus on this Act has been on physical disabilities, mental health conditions are also covered under its provisions. As we approach World Mental Health Day on 10th October, it’s important to understand how the Equality Act protects employees with mental health conditions, and what employers must do to ensure they meet their legal obligations.

A group of people are clapping their hands in an office.

Workplace Stress and the Law: How Employers Can Support Employee Wellbeing

By Marianne Wright • October 7, 2024

In the modern workplace, stress is often considered an inevitable part of the job. However, when stress becomes overwhelming, it can lead to significant mental health issues such as anxiety, depression, and burnout. In the UK, employers have a legal responsibility to manage workplace stress and support employee wellbeing. As we approach World Mental Health Day on 10th October, this article explores the legal framework around workplace stress and provides guidance on how employers can take steps to create a healthier, more supportive work environment.

A man in a wheelchair is sitting at a table with other people.

Expanding the Scope of Indirect Discrimination Claims: Implications for Employers

By Springhouse Solicitors • October 2, 2024

The British Airways Plc v Rollett & Others ruling underscores the importance of focusing on the actual disadvantages caused by workplace policies. Employers are now obliged to be more vigilant in assessing the broader impacts of their decisions, ensuring equity and fairness for all employees, regardless of whether they possess a protected characteristic under the Equality Act 2010. By proactively addressing these considerations, employers can foster a more inclusive work environment and mitigate the risk of indirect discrimination claims.

A woman is sleeping at a desk in front of a laptop computer.

Shift Work, Burnout, and Your Rights: Navigating the Challenges of Healthcare Employment

By Marianne Wright • August 11, 2024

Shift work is a necessity in the healthcare sector, ensuring round-the-clock care. However, long hours, night shifts, and irregular schedules can take a significant toll on healthcare workers' physical and mental health, increasing the risk of burnout. This article outlines your legal rights regarding rest breaks, the impact of shift work, and your employer's obligations to minimise the risks.

Mental Health at Work: Legal Obligations and Best Practices for UK Employers

By Yeing-Lang Chong • August 11, 2024

Mental health conditions are becoming increasingly prevalent in UK workplaces, with far-reaching consequences for employees, businesses, and society as a whole. Employers have a duty of care towards their employees' mental wellbeing, and certain mental health conditions may also be recognised as disabilities under the Equality Act 2010.