Positive discrimination is the practice of favouring individuals from underrepresented or disadvantaged groups in a way that goes beyond levelling the playing field. While the intention is often to promote diversity and inclusion, positive discrimination typically involves giving preferential treatment to certain candidates based solely on a protected characteristic, rather than merit.

Understanding the distinction between positive discrimination and legally permissible actions, such as positive action, is crucial for employers and HR professionals. Misinterpreting these concepts can lead to legal risks and potential discrimination claims. 

Is positive discrimination legal?

Under the UK’s Equality Act 2010, positive discrimination is generally unlawful. This means employers cannot hire, promote, or favour individuals based on protected characteristics such as race, gender, or disability if other candidates are equally or more qualified.

However, the law does allow for positive action, which is different from positive discrimination. Positive action enables employers to take proportionate steps to support underrepresented groups, such as offering targeted training or development opportunities. The critical difference is that positive action focuses on removing barriers rather than giving unfair advantages.

There are some exceptions, such as roles where possessing a particular protected characteristic is a genuine occupational requirement (GOR). For example, hiring a female support worker for a women’s refuge may be legally justifiable.

Positive discrimination examples

Although positive discrimination is largely illegal in the UK, some real-world scenarios illustrate where organisations may unintentionally engage in it.

Hiring based on gender

A company identifies that women are underrepresented in leadership positions and decides to promote a female candidate over a male candidate who is equally or more qualified. This would be considered positive discrimination and is unlawful.

Setting quotas for recruitment

An organisation mandates that a certain percentage of its workforce must come from an ethnic minority background, without considering qualifications or experience. While targets to improve diversity are lawful, rigid quotas that prioritise one group over another are not.

Automatically hiring disabled candidates

A company decides to hire a disabled applicant over a more qualified non-disabled applicant simply to meet diversity targets. While reasonable adjustments for disabled candidates are encouraged, selection decisions must still be based on merit.

What is the difference between positive action and positive discrimination?

Many employers struggle to understand the difference between positive action and positive discrimination. Here are the key distinctions:

Legal vs illegal practices

Positive action is legal and encourages diversity by removing barriers for disadvantaged groups. Positive discrimination is illegal as it involves favouring a person because of a protected characteristic rather than qualifications or experience.

Levelling the playing field vs giving unfair advantages

Positive action ensures all candidates have equal opportunities, such as mentoring schemes for underrepresented employees. Positive discrimination, however, means preferring someone based on their characteristic alone, which disadvantages others.

Training and development vs recruitment bias

Positive action includes steps such as offering additional training, career coaching, or outreach programmes to attract diverse candidates. Positive discrimination, on the other hand, might involve excluding certain groups from job opportunities in favour of others.

Training for complying with rules around positive discrimination

To ensure compliance with UK equality laws, organisations should educate their teams on the differences between positive action and positive discrimination. VinciWorks offers various training courses designed to help HR professionals, managers, and recruiters navigate these legal nuances.

Relevant courses include:

• Equality and Diversity Training – Covers the Equality Act 2010 and how to implement inclusive workplace policies.
• Unconscious Bias Training – Helps employers and employees understand bias and make fair hiring decisions.
• Reasonable Adjustments for Disability – Provides guidance on making workplaces accessible without engaging in unlawful positive discrimination.