Positive Action Basics: Lawful Diversity Steps for Employers

Looking to build a more inclusive, diverse workplace? Wondering what “positive action” actually means – and, crucially, how to apply it lawfully without risking a discrimination claim? You’re not alone. More and more UK employers want to open doors for individuals from disadvantaged or underrepresented groups, but with the law in play, it’s natural to feel cautious about where the line sits between legal positive action and unlawful positive discrimination. In this guide, we’ll break down the basics of positive action, explain the rules under the Equality Act 2010, and walk through practical steps you can take to make your business welcoming for all – while staying squarely on the right side of employment law. Let’s demystify positive action and help you embed compliance (and confidence) into your workplace diversity efforts, right from day one.

What Does Positive Action Mean?

Before you start building a diversity strategy, it’s important to understand what positive action actually is in the eyes of UK law. The phrase gets used a lot, but in practical terms, it has a specific legal meaning that’s different from positive discrimination – which, crucially, is not permitted under the Equality Act 2010. Positive action is a set of steps employers can lawfully take to help people with certain protected characteristics (like race, religion, sex, disability, age, sexual orientation and others listed in the Act) overcome:

• Disadvantage connected to their characteristic (for example, lower average rates of promotion or pay)
• Underrepresentation in the workplace or certain roles
• Particular needs that arise from their characteristic

Think of it as levelling the playing field – giving people who may have faced barriers to entry, or lack opportunities, the support to take part and thrive at work. Let’s be clear: this is not a free pass to give jobs or promotions exclusively to people from certain backgrounds or to treat others unfairly, but a lawful way to help bridge gaps.

Positive Action vs Positive Discrimination: What’s the Difference?

It’s easy to mix up these two concepts, but the distinction is fundamental:

• Positive action is about supporting disadvantaged or underrepresented groups where there’s evidence of disadvantage, so long as you do not treat others less favourably overall. This is legally allowed.
• Positive discrimination (sometimes called “reverse discrimination”) is treating someone better solely because of a protected characteristic, to the detriment of others, regardless of merit – for example, appointing a woman to a job just because she’s female, when there’s a better-qualified male candidate. This is unlawful under the Equality Act 2010.

In practical terms, positive action means helping but not automatically privileging someone due to a protected characteristic. You always need evidence and proportionality. For more on general discrimination rules, see our guide on Workplace Harassment & Discrimination.

When Can Employers Take Positive Action?

The Equality Act 2010 sets out specific circumstances when positive action is allowed. Here’s how you know you’re on safe ground:

• You have evidence of disadvantage, underrepresentation, or particular needs. It’s not enough to guess or assume. You must reasonably believe that people with a protected characteristic face barriers or are underrepresented – for example, in leadership positions or certain departments.
• You’re responding in a proportionate way, designed to tackle the actual problem found.
• Your actions don’t lead to less favourable treatment of others. You can’t use positive action as an excuse to overlook more qualified candidates or otherwise discriminate against people without the characteristic in question.

To evidence disadvantage or underrepresentation, many employers use data from their own workforce profiles, wider sector benchmarks, or reports like the Office for National Statistics. You don’t need forensic-level statistics, but it’s wise to keep records of these findings for audit trails and to justify your approach if ever challenged.

What Does the Law Actually Permit Under Positive Action?

There are a few key legal rules every employer must follow:

• No automatic preference. You can’t decide to hire or promote someone solely because of their protected characteristic. Exception: the “tie breaker” rule (more on this below).
• The action must be proportionate. If, for example, women are underrepresented in management, offering targeted development workshops is likely reasonable. Replacing all current managers with women would not be.
• The gap must actually exist, and you must be able to show it. Don’t take positive action based on stereotypes or guesswork – base it on evidence.
• Keep it transparent and justifiable. Document your rationale and the steps you’ve taken, so you can explain your approach if necessary.

If you’re in doubt, chat to an employment law specialist who can help assess your situation and design a process that stays compliant. Sprintlaw can help with performance management and other workplace documentation.

What Are Some Examples of Lawful Positive Action?

Wondering what positive action looks like in practice? Here are some common – and compliant – approaches UK employers use:

• Targeted recruitment advertising. Placing job ads in media outlets read by underrepresented groups, or including encouragements such as “we welcome applications from people of X background” to broaden the applicant pool.
• Outreach campaigns or partnerships. Working with community groups, charities, or educational providers to promote opportunities to groups who might not routinely apply.
• Dedicated mentoring, shadowing or training programmes. For example, launching leadership pathways for women in a male-dominated workplace, or extra training for disabled staff to help progression.
• Workplace adjustments and support schemes. Such as accessibility improvements for disabled employees, or religious observance policies.
• “Tie-breaker” in recruitment decisions. If you have two (or more) candidates equally qualified for a job, you may select the one from the underrepresented group – but only if all other criteria are genuinely equal.

For more on recruitment compliance, see our article Illegal Interview Questions.

How Can You Evidence a “Disadvantage” or Need for Positive Action?

You can (and should) gather a range of data before taking positive action. Sources may include:

• Internal workforce monitoring (such as diversity and inclusion surveys or HR data)
• Benchmarks from professional bodies or regulators
• Government statistics (for example, the Office for National Statistics)
• Previous recruitment and promotion results
• Feedback from staff or exit interviews

Keeping records of this data (even if not highly detailed) provides proof you had a reasonable belief of the issue and that your intervention was justified and necessary.

What Steps Can Employers Take to Stay Lawful?

Getting positive action right isn’t just about having great intentions – you need a clear, defensible process. Here’s what we recommend:

1. Identify gaps or disadvantage. Use your workforce data, staff feedback, or wider industry analysis.
2. Consult with staff or legal experts. Gather views and check your planned actions are proportionate and relevant (not over broad or misdirected).
3. Select proportionate measures. Choose steps that fit the scale of the issue – extra training, targeted outreach, support networks, or reasonable tie-breaker procedures, not blanket preference policies.
4. Document your rationale. Keep a clear record of why and how you’re applying positive action, including any evidence used to justify it.
5. Review regularly. Make positive action an ongoing process rather than a one-off. Circumstances might change and continuing measures without justification could become unlawful.

For more tips on getting your legal processes right, see our Guide to Employee Onboarding.

How to Avoid Positive Discrimination by Mistake

The line between positive action and unlawful discrimination isn’t always clear. Employers sometimes inadvertently cross it. Watch out for:

• Giving automatic preference to candidates just because they’re from an underrepresented group, without following the “tie-breaker” rule.
• Running open training or development programmes for only one group, with no clear evidence of disadvantage or gap.
• Making decisions without evidence, e.g. assuming that all women need extra support or that a certain group is always underrepresented.
• Failing to update your data or review your actions regularly. A measure that was justified two years ago may not be justified today if the workforce has changed.

If you’re unsure, talk to a legal expert to avoid costly mistakes and complaints. Sprintlaw can assist with employment contracts and wider workplace compliance.

Can Positive Action Be Part of Recruitment and Promotion?

Absolutely, but it must be used carefully. Examples include:

• Wording your job adverts to encourage applications from underrepresented groups – for example, by stating your commitment to equal opportunities.
• Running outreach events, like careers workshops for BAME or disabled candidates.
• Providing extra support during recruitment, such as offering interview coaching or accessible application processes.
• “Tie breaker” selections where all else is equal.

Remember, you should not shortlist or hire/promote exclusively based on someone’s protected characteristic unless the “tie breaker” rule applies. For more detailed breakdowns on the types of employment arrangements you can use, read about employees vs contractors.

What Is Not Permitted? (Examples of Unlawful Positive Discrimination)

To avoid falling foul of discrimination law, you must not:

• Reject a (more qualified) applicant because they’re from a non-targeted group
• Limit promotion, training, or pay increases to underrepresented groups only, without evidence of disadvantage
• Offer different contracts or terms to people purely based on a protected characteristic
• Create quotas (except in very rare, lawful contexts such as some positive action in public sector recruitment, and even then, strict limits apply)

If you want to know more about drafting fair and defensible workplace documents, see: Contract Redrafting.

Best Practices for Employers: Embedding Positive Action Safely

Embedding positive action isn’t just about a tick-box exercise. To set your business up for long-term diversity and legal compliance:

• Be open about your aims and measures (“we’re supporting more women into management because our analysis shows low representation”)
• Track the impact and adjust as necessary
• Train management and HR on positive action guidelines and equality law
• Make inclusive language and images part of all job advertising and processes
• Stay up to date with legislation and get advice if you plan new initiatives

What Legal Documents Can Support Positive Action?

Every employer committed to diversity should review their:

• Workplace policies and staff handbook (with clear non-discrimination and positive action guidelines)
• Recruitment process documents, including employment contracts and offer letters
• Training or development programme materials (showing eligibility and process)
• Records of workforce monitoring, feedback and consultation processes

Avoid using generic templates – bespoke advice helps ensure your documents really do achieve the aims (and stand up to scrutiny).

Key Takeaways

• Positive action lets you support people facing disadvantage or underrepresentation, as long as you act lawfully and proportionately under the Equality Act 2010.
• You need evidence of a “gap” before taking action – base interventions on real workforce or sector data, not assumptions.
• Lawful positive action can include targeted ads, development programmes, and – if candidates are equally qualified – the “tie breaker” rule.
• You must not automatically favour or select someone based solely on a protected characteristic unless the law allows it in a precise “tie” situation.
• Regularly review, evidence and document your positive action steps to stay compliant as your business evolves.
• Seek legal advice and draft robust, specific workplace documents to support your diversity aims and avoid costly employment disputes down the line.

If you’d like help with implementing positive action, reviewing recruitment processes, or making sure your employment documents are compliant, our friendly legal team are here to help. You can contact us for a free, no-obligations chat at 08081347754 or team@sprintlaw.co.uk.