Most employers want to improve diversity, widen access and build fairer workplaces. That is undoubtedly a good thing. The challenge is making sure positive action does not drift into unlawful positive discrimination.
Because while equality law does allow employers to take certain steps to support under-represented or disadvantaged groups, it does not allow employers to simply prefer someone because they have a protected characteristic.
Understanding where that line is can be easy to get wrong. And if it is, your good intentions will not necessarily protect you.
Positive action vs positive discrimination
Positive action
Positive action is where an employer takes proportionate steps to address disadvantage, meet specific needs or improve representation for people with a protected characteristic.
That might include targeted outreach, mentoring, leadership programmes, encouragement to apply for roles or support aimed at widening access.
Positive discrimination
Positive discrimination is different. That usually involves treating someone more favourably because of a protected characteristic in a way the law does not allow.
In simple terms: positive action can be lawful. Positive discrimination usually will not be. The risk for employers is not wanting to improve diversity. The risk is how the initiative is structured, worded and applied.
Where employers get it wrong
Positive action doesn’t replace proper recruitment decisions
Recruitment and promotion are where employers most often run into difficulty. The Equality Act allows positive action in recruitment and promotion only in very limited circumstances. In particular, it may only be used where candidates are genuinely as qualified as each other. It cannot be used as a shortcut around objective criteria, proper scoring or evidence-based decision-making.
The Cheshire Police case remains a useful warning. The aim was to improve diversity, but candidates were treated as being of equal merit when they had not genuinely been assessed as equal. The result was unlawful discrimination. The lesson is straightforward: diversity objectives should support recruitment processes, not replace them. Selection decisions must remain merit-based, properly assessed and clearly documented.
Targets and quotas aren’t the same thing
Many employers use diversity targets to measure progress and improve accountability. Done properly, there is nothing wrong with that. The risk starts when targets begin to influence individual recruitment, promotion or selection decisions.
A target should help an employer monitor progress. It should not become an instruction to appoint, promote or select someone because they have a particular protected characteristic. That distinction matters. Employers should be very cautious about any approach that reserves opportunities, guarantees places or creates automatic preferences for particular groups.
Good intentions aren’t enough
One of the biggest mistakes employers make is assuming that a genuine desire to improve diversity is enough. That’s unfortunately not the case. Positive action should be evidence-led. Employers should be able to identify the disadvantage, under-representation or specific need they are trying to address, and explain why the proposed step is proportionate.
That evidence might come from workforce data, recruitment patterns, promotion data, retention figures, employee feedback or wider sector information. Without that evidence, even a well-intentioned initiative can become difficult to defend if challenged.
Wording can create risk
Sometimes the issue is not just what the employer is trying to do, but how it’s being described. There is a big difference between encouraging applications from an under-represented group and saying an opportunity is only available to that group.
There is also a difference between widening access and reserving roles. Those distinctions may sound technical, but they matter. Poor wording can quickly make a lawful initiative look like unlawful discrimination.
What should employers be doing?
Start with the problem, not the solution
Before launching any positive action or EDI initiative, be clear on the issue you are trying to address. Is there evidence of under-representation? Is a particular group facing disadvantage? Are there barriers in recruitment, progression or retention? Once you understand the problem, you can design a proportionate response. Starting with a solution first and trying to justify it later is where risk often creeps in.
Keep recruitment and promotion decisions merit-based
Positive action should sit alongside robust recruitment processes, not override them. That means clear criteria, objective scoring, structured interviews and proper records of decision-making. If you are relying on an equal merit situation, make sure it is genuinely equal merit. Not broadly similar. Not “close enough”. Genuinely equal.
Use your targets carefully
Targets can be useful for measuring progress and keeping diversity on the agenda. But managers need to understand that targets are not hiring instructions. If a target creates pressure to appoint someone because of a protected characteristic, rather than because they are the best person for the role, the risk increases significantly.
Sense-check the structure before launch
Small details can make a big difference. Eligibility criteria, application wording, selection processes, manager guidance and promotional materials all need to be checked carefully. A scheme that is lawful in principle can quickly become risky if the wording or implementation isn’t right.
Review initiatives over time
Positive action should not be left running indefinitely without review. Employers should check whether the original issue still exists, whether the measure remains proportionate and whether there is a lower-risk way of achieving the same aim.
How can we help?
Positive action is not off-limits. But it is an area where structure, wording and evidence matter.
We can help employers sense-check EDI initiatives before launch, including recruitment and promotion processes, targeted access schemes, mentoring programmes, leadership initiatives, guaranteed interview schemes, diversity monitoring and manager training.
Give us a shout if you are looking at improving representation, widening access or launching a new EDI initiative. We can help you understand where the legal line is and reduce the risk of a positive initiative becoming a discrimination issue.
This update is accurate on the date it was published but may be subject to change which may or may not be notified to you. This update is not to be taken as advice and you should seek advice if anything contained within affects you or your business.
