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As an employer, it is important to ensure that minority groups have equal opportunities in the workplace. Additionally, it is unlawful to discriminate based on one of the nine protected characteristics such as a person’s race, sexual orientation, age or gender. Both these sentiments are termed positive action and positive discrimination. Understanding each of these terms is critical to ensure you lawfully carry out your duties as an employer. This article will explain the main differences between positive action and positive discrimination.
What is Positive Discrimination?
Positive discrimination is where you treat someone differently than others but in a positive way. Discrimination is generally unlawful, and this applies to positive discrimination too. Positive discrimination is unlawful where, for example, you:
- recruit a person on the basis that they have one of the nine protected characteristics rather than on their merits;
- implement targets for the amount of people with a protected characteristic to employ; or
- choose a person from an underrepresented group for a role when there are other more qualified candidates.
However, there are rare times when it is lawful to positively discriminate, such as:
- A job candidate meets the criteria for a job role and has let you know that they have a disability. Therefore, you need to make reasonable adjustments for their interview or role to ensure their disability is not a barrier.
- You have two job candidates who are both as qualified as each other for the post, and you cannot decide between them, so you choose one based on the fact that they are from an underrepresented group.
- The job requires a person to have that protected characteristic. For example, where a headteacher in a Catholic school must be a Catholic.
What is Positive Action?
Positive action is where you try to increase the range of candidates for a job role through encouragement. You may want to encourage applicants from an underrepresented group in your workforce to apply for the role. For example, if your business is in the IT industry, you may want to encourage women to apply as there tend to be fewer women than men in the IT industry.
It can take place through:
- using inclusive language during recruitment to avoid excluding potential candidates;
- using a range of mediums to promote equality amongst protected groups;
- when advertising a position, promoting your legal duties towards protected groups such as reasonable adjustments; and
- creating campaigns that challenge stereotypes.
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Key Differences and Similarities Between Positive Discrimination and Positive Action
| Positive Discrimination | Positive Action | |
| Similarities | Both are related to the nine protected characteristics Both can occur during job selection and recruitment | |
| Difference | Positive discrimination is generally unlawful except in rare instances It is a form of discrimination where employers do not maintain a legitimate selection process There may be are occasions where positive discrimination is lawful | Positive action is lawful It is not a form of discrimination It maintains a legitimate selection process |
Key Takeaways
Discrimination in employment is generally unlawful, including positive discrimination. However, positive action is lawful. Positive discrimination and positive action relate to recruiting and selecting candidates for a job role. Positive discrimination is where you select a person based on the fact that they have a protected characteristic. There are rare occasions where this is allowed. For example, if you have two candidates both as qualified as each other, and you cannot make a decision; therefore, you choose the one with the protected characteristic. Alternatively, positive action is where you make efforts to encourage applicants from underrepresented groups to apply for the job role. However, again you must not select them for a role on the basis of their protected characteristic.
If you need help understanding the difference between positive action and positive discrimination in England and Wales, our experienced employment lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents for a low monthly fee. So call us today on 0808 196 8584 or visit our membership page.
Frequently Asked Questions
Positive discrimination is where you, as an employer, choose a person to carry out a job role because they have a protected characteristic and are from an underrepresented group. Generally speaking, this is unlawful, although it is allowed on some occasions.
Positive action is where you, as an employer, take steps to encourage applicants from underrepresented groups with a protected characteristic to apply for your job position. This is in a bid to widen the diversity of your workforce and address imbalances in the workforce.
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