hello@kilgannonlaw.co.uk

Our team is ready to answer any questions

0800 915 7777

Book your consultation today

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.


a woman is writing on a tablet while using a laptop .
By Matthew Kilgannon 20 Mar, 2024
Every April, the Government reviews and makes changes to employment laws, including a review of financial rates. Below we set out a summary of the proposed changes coming into effect in April and beyond.
a man in a wheelchair is sitting at a desk with a woman standing next to him .
By Marianne Wright 20 Feb, 2024
In the modern workplace, fostering a culture of inclusivity and ensuring equal treatment for all employees is a crucial aspect of employment law. Discrimination based on disabilities (which can include mental health conditions) is strictly prohibited in the United Kingdom. This article explores the legal framework in UK employment law that safeguards employees against discrimination and highlights the consequences faced by employers who fail to uphold these important principles.
a man is sitting at a desk in a dark room using a laptop computer. GDPR
By Emily Kidd 06 Feb, 2024
In an era of heightened data protection awareness and stringent regulations like the General Data Protection Regulation (GDPR), employees play a critical role in safeguarding personal data. This article explores the legal consequences that employees may face in the United Kingdom when implicated in data protection breaches at the workplace.
person holding up a mental health book and in a discussion
By Yeing-Lang Chong 22 Jan, 2024
In recognition of the importance of employee well-being, employers in the UK are increasingly implementing well-being initiatives to support the mental health and overall well-being of their workforce. These initiatives, which can include employee assistance programs (EAPs) and wellness programs, aim to provide support, resources, and interventions that enhance employee well-being. This article explores the legal framework surrounding well-being initiatives in UK employment law and highlights the benefits and considerations for employers when implementing such programs.
Female employee getting harassed at work by a colleague
By Marianne Wright 19 Jan, 2024
Creating a safe and respectful work environment is a fundamental aspect of UK employment law. This article explores the legal obligations placed on employers to address workplace harassment, highlighting the measures they should take to promote a culture of respect and protect their employees' mental health.
By Emily Kidd 04 Dec, 2023
In recent years, there has been increasing recognition of the importance of mental health in the workplace. Employment law acknowledges the sensitive nature of mental health disclosures and places obligations on employers to handle such disclosures with care, confidentiality, and without discrimination. This article explores the legal framework surrounding mental health disclosures in the workplace, emphasising the responsibilities employers have in safeguarding employee privacy and ensuring a supportive and inclusive environment.
By Emily Kidd 04 Dec, 2023
The General Data Protection Regulation (GDPR) revolutionised the way organisations handle personal data, and for Human Resources (HR) departments in the United Kingdom, compliance is paramount. This article provides a comprehensive exploration of best practices for HR to safeguard employee data and ensure GDPR compliance in the workplace.
Whistleblowing, Sexual Harassment and Gagging Clauses image
By Louise Maynard 09 Nov, 2023
On 23 October 2024, the new, positive duty to prevent sexual harassment in the workplace comes into force. The extent to which a non-disclosure agreement can prevent a worker disclosing sexual harassment will be under the limelight. In the employment context, the most common area for non-disclosure agreements is settlement agreements, under which an employee agrees to settle all claims in return for a compensation payment often where the employer has been unable to resolve a grievance including unlawful discrimination or sexual harassment.
Positive duty to prevent sexual harassment in the workplace
By Louise Maynard 03 Nov, 2023
On 26 October 2023, Parliament passed new legislation to amend the Equality Act 2010 to place a duty on employers to take reasonable steps to prevent sexual harassment of employees and workers during the course of their employment. The new duty comes into force on 26 October 2024.
What is a Deposit order in the Employment Tribunal?
By Louise Maynard 28 Aug, 2023
Employment tribunals are often reluctant to strike out cases at an early stage unless there is a compelling reason to do so. An alternative option for the Tribunal is to make a deposit order.
More Posts
Share by: