Most employers recognise the value of a diverse workforce. Broader perspectives, a deeper talent pool, a team that actually reflects the communities it serves. These are practical advantages, and many organisations are actively working to improve representation as a result, whether by rethinking how they advertise roles, reaching into different networks for candidates, or investing in development programmes for underrepresented groups.
The Equality Act 2010 supports these efforts. Its positive action provisions give employers a lawful framework for taking targeted steps to address disadvantage and underrepresentation within their workforce.
But there is a meaningful legal distinction between positive action, which is permitted, and positive discrimination, which is not. The line between the two is not always obvious. Employers who misjudge it risk tribunal claims, compensation awards and lasting damage to internal trust. Here, we set out where that line falls and how to design diversity initiatives that work within it.
What employers can do
The Equality Act creates a broad permission for positive action. If an employer reasonably believes that people sharing a protected characteristic are disadvantaged, have particular needs, or are underrepresented in its workforce, it can take proportionate steps to address that. The protected characteristics under the Act include sex, race, disability, age, sexual orientation, religion or belief and gender reassignment.
In practice, this opens the door to quite a wide range of measures. Targeting job advertisements at communities or networks where a particular group is underrepresented is lawful, as is introducing mentoring or sponsorship programmes to support career progression for people who face identifiable barriers. Employers might also offer training that addresses skills gaps disproportionately affecting certain groups, review selection criteria to check they genuinely reflect what the role requires, or provide work experience and shadowing opportunities aimed at underrepresented groups within their sector.
The common thread is that these measures widen access to opportunity without restricting it for anyone else. Encouraging more women to apply for leadership roles does not stop men competing on equal terms. Running a development programme for employees from ethnic minority backgrounds does not take anything away from other staff. The aim is to level the playing field so the strongest candidates can come through, regardless of background.
It is worth noting that positive action is entirely voluntary. No employer is legally obliged to use it, though public sector employers should be aware that their equality duties may require them to consider doing so. The Government Equalities Office published updated guidance in April 2023 reinforcing this point and stressing the importance of grounding any initiative in evidence. The guidance encourages employers to document what they are doing, explain why, and make sure the steps taken are proportionate to the problem they are trying to solve.
The tiebreak
The Act goes further when it comes to actual recruitment and promotion decisions. An employer can favour a candidate from an underrepresented group over another candidate, but only if a set of strict conditions are all met.
First, the candidates must be as qualified as each other for the role. The employer must also reasonably believe the relevant group is disadvantaged or underrepresented, and the decision to favour the candidate from that group must be a proportionate way of addressing the issue. On top of all that, the employer cannot be operating a blanket policy of automatically preferring candidates from a particular group. Miss any one of these conditions and the decision is likely to amount to unlawful discrimination.
That first condition is where most employers come unstuck. “As qualified as each other” means genuinely comparable in overall merit, assessed against all the relevant criteria for the role. It does not just mean both candidates cleared a minimum pass mark. Setting an artificially low threshold and then treating everyone above it as equally qualified is risky territory.
In reality, genuine tiebreak situations are rare. A well-designed recruitment process will usually produce some differentiation between candidates, even at the final stage, and that is a sign the process is working as it should. If a true tie does arise, the employer needs to document its reasoning carefully: why it concluded the candidates were of equal merit, what evidence supports the belief that the relevant group is underrepresented, why the decision was proportionate, and that it was made on the facts of this particular case rather than as part of a routine or standing policy.
Where the line is crossed
Positive discrimination is, in most cases, simply direct discrimination by another name. It occurs when an employer gives automatic or predetermined preference to someone because of a protected characteristic, outside the narrow conditions described above. The employer’s motives do not change the legal position, however well-intentioned they may be.
In practice, the most common forms of positive discrimination are not difficult to spot. Hiring quotas that require a fixed proportion of appointments from a particular group are unlawful. So is appointing or promoting someone primarily because of their protected characteristic rather than through a competitive process. Bypassing an employee for an opportunity to make way for someone from an underrepresented group is direct discrimination, as is operating any blanket policy of preferring candidates from particular groups regardless of individual merit.
The difficulty is that these situations often grow out of perfectly reasonable objectives. An employer wanting to increase representation at senior level is pursuing a legitimate aim. But where the method of getting there involves disadvantaging an individual because of their protected characteristic, the legal protection kicks in regardless of whether the discrimination was motivated by prejudice or by a genuine desire to improve diversity.
The case of Turner-Robson and others v Chief Constable of Thames Valley Police is a good example. Thames Valley had a legitimate interest in diversifying its senior ranks and operated a Positive Action Progression Programme to fast-track minority ethnic officers. When a Detective Inspector vacancy came up, a candidate belong to a minority ethnic group was placed directly into the role. He was moved into the role without it being advertised and without any competitive recruitment process taking place. Three white officers who had expected to be able to apply brought claims for direct race discrimination. The tribunal upheld them. The force had bypassed its own procedures, carried out no equality impact assessment, and given no real thought to whether the approach was proportionate by failing to carry out any balancing exercise to determine whether positive discrimination was appropriate. The irony is that the appointed officer may well have been successful had the role been advertised and filled competitively. By skipping that process, the force undermined both the appointment itself and the wider programme it was meant to support.
The consequences of getting it wrong
When positive action tips into positive discrimination, the consequences go well beyond the tribunal itself. Compensation in discrimination cases is uncapped, and claimants do not need any minimum length of service. An unsuccessful applicant who believes they were passed over because of a protected characteristic can bring proceedings whether they were an existing employee or an external candidate.
Reputational damage can be just as costly. Tribunal judgments are publicly available, and cases involving diversity initiatives tend to attract press attention. The Thames Valley case generated extensive media coverage and triggered an independent review that found a “divided workforce,” with the fallout affecting morale and trust well beyond the individuals directly involved.
There is also a quieter but equally important internal cost. If employees start to feel that recruitment or promotion decisions are being shaped by protected characteristics rather than merit, confidence in the fairness of the whole system erodes. Once that trust is lost, it is hard to win back, and it can actively undermine the diversity objectives the employer is trying to achieve. People do not engage with initiatives they believe are unfair.
How to get it right
The reassuring reality is that the vast majority of effective diversity measures sit comfortably within the law. Employers who bring the same rigour to this area as they would to any other legal or commercial risk can make meaningful progress without going anywhere near the boundaries.
Start with the evidence. Any positive action measure needs to be grounded in data showing the disadvantage, different need or underrepresentation it is designed to address. That does not mean commissioning expensive research. Workforce composition data, recruitment outcome monitoring, progression and retention figures, patterns from exit interviews: all of these can provide a sound basis for action. What matters is that the evidence is genuine, that someone has actually considered it, and that it supports the specific initiative being proposed. An employer who cannot explain why a particular measure is needed will struggle to show it is proportionate.
Proportionality runs through the entire framework. Before launching any initiative, it is worth asking a few basic questions. Does the measure address an identified problem? Does it go further than necessary? Could something less intrusive achieve the same result? Could it disadvantage people who do not share the relevant characteristic? For outreach, development, training and process improvement, the answer will almost always be reassuring. Measures that touch on recruitment or promotion decisions call for considerably more care.
When it comes to recruitment and promotion, the process matters as much as the outcome. A competitive, transparent and well-documented selection process is the single best protection against a discrimination claim. It makes sure candidates are assessed on merit, that any use of the tiebreak is grounded in genuine equality of qualification, and that the organisation can show exactly how and why a particular decision was reached.
Training matters too. The Turner-Robson tribunal was pointed about the risks of leaving decision-makers without proper training in equality law, and that gap is far from unique to policing. Anyone involved in recruitment or promotion decisions needs to understand where positive action ends and positive discrimination begins. Refresher training should happen regularly, and its delivery should be recorded.
And finally, keep records. Document the evidence base for any positive action initiative, the reasoning behind specific measures, how recruitment or promotion decisions were made where positive action was a factor, and any equality impact assessments carried out along the way. If a decision is ever challenged, an employer with a clear paper trail will be in a far stronger position than one relying on good intentions after the fact.
Diversity done well
There is no inherent tension between pursuing diversity and staying on the right side of the law. The Equality Act gives employers a clear and workable framework, provided they understand its limits and work within them.
The employers who handle this area well tend to be the ones who treat diversity as part of how they recruit, develop and retain people, rather than as a standalone project. They build their approach on evidence, keep their measures proportionate, run transparent processes and document what they do. They recognise that the law is not standing in the way of diversity. It is providing the framework for doing it properly.
The risk sits in the gap between intention and execution. A legitimate objective does not make the method lawful. The best protection against getting it wrong is to invest in the process itself: the evidence gathering, the training, the documentation, and the discipline that turns good intentions into decisions an employer can stand behind.
For advice on designing lawful diversity initiatives, reviewing recruitment processes, or responding to a discrimination claim, contact the Buckles employment team.
