The Equality Act 2010 and positive action

This note considers the provisions in the Equality Act 2010 that allow positive action in respect of employment – it should be noted that positive discrimination continues to be illegal in most cases.

Section 158 of the Equality Act 2010 builds on existing legislation on positive action and extends it to include other “protected characteristics” such as age and disability. It allows, but does not require, “any action” to be taken to support those with a protected characteristic, as long as it is a “proportionate means”. Such actions might include training to enable individuals to gain employment, or health services to address their needs. However, it does not permit “anything that is prohibited by or under an enactment other than this Act” – therefore, positive discrimination, such as quotas, continues to be illegal.

Section 159 of the Act introduced a new, specific exemption, for positive action in relation to recruitment and promotion. Section 159 permits (but does not require) an employer to take a protected characteristic into consideration when deciding whom to recruit or promote, where people having the protected characteristic are at a disadvantage or are under-represented – this positive action can be taken only where the candidates are “as qualified as” each other.

However, concerns have been voiced that “an employer that favours one job candidate over another because he or she has a protected characteristic could be exposed to a claim of unlawful

discrimination in an employment tribunal by the rejected candidate, who argues, for example, that he or she is better qualified for the job”.

Section 158 came into force on 1 October 2010, and section 159 on 6 April 2011. Both sections apply to England, Wales and Scotland.

The Equality and Diversity (Reform) Bill, a Private Member’s Bill tabled by Philip Davies, sought to address issues arising from section 159, and repeal the Sex Discrimination (Election Candidates) Act 2002, which allowed political parties to draw up all-women shortlists of candidates for elections. The Bill was considered by the House on 21 October 2011, but it did not receive a Second Reading and so will not progress further this session.