Positive action vs positive discrimination
Improving diversity, equity and inclusion remains a strategic priority for many employers. As DEI ambitions grow, positive action can be a powerful tool to improve diversity in the workplace. However, navigating the legal framework can often prove to be a challenge for employers, as the line between what amounts to lawful positive action, and unlawful positive discrimination, is not always clear.
Positive action allows an employer to take certain actions to enable or encourage those with a particular protected characteristic to overcome or minimise a disadvantage, to meet their particular needs, or to enable or encourage them to participate in an activity where they are disproportionately underrepresented. It exists in two forms under the Equality Act 2010:
(i) general positive action; and
(ii) positive action in recruitment and promotion.
Although there is no legal definition of ‘positive discrimination’, it can be described as the giving of preferential treatment to members of a particular disadvantaged or underrepresented group, without consideration of merit, (i.e., preferential treatment solely because of a protected characteristic). Irrespective of good intentions, positive discrimination is unlawful discrimination in the UK unless a statutory exemption applies.
Many employers use some form of positive action, whether that be through targeted training, networking, or setting diversity targets. However, navigating the provisions can be challenging as the line between positive action and positive discrimination is not always clear. For example, the setting of diversity targets might not be unlawful per se, but the measures an employer takes to achieve those targets could fall on the wrong side of the legal line and amount to positive discrimination. The financial and reputational risks of getting it wrong can also be significant, most obviously, in the form of a tribunal claim for unlawful discrimination.
Further guidance and resources
DEI: Where now? Navigating a safe legal path in challenging times is a new thought leadership series by the Linklaters Diversity Faculty, providing insights, commentary and guidance for employers on the most complex and technical areas of UK law, regulation and governance on DEI issues. The series includes a guide with a practical overview of the differences between lawful positive action and unlawful positive discrimination and explains how employers can navigate the grey area and promote diversity, equity and inclusion whilst staying on the right side of the legal line. Visit our thought leadership webpage to access the resources, and if you have any queries or would like to discuss these issues further, please get in touch.
