The legalities & benefits of positive action in the hiring process

Stephen Phipps our consultant managing the role
Posting date: 16 August 2021

Over our years in the executive talent search field and with clients’ increasing understanding and knowledge of diversity and inclusion, we have been approached on numerous occasions with quotas and shortlists to recruit ‘X women’ or ‘X minorities’.


While it’s fantastic news that employers are actively seeking opportunities to recruit under-represented or disadvantaged individuals, this form of activity is actually classed as positive discrimination and is illegal in the UK. The legalities of recruiting and promoting under-represented and disadvantaged individuals are set out in the Equality Act 2010, which came into force on the 6th April 2011.


But what is positive discrimination exactly, how does it differ from positive action - and what are the legalities you need to look out for?

What is positive discrimination?

Positive discrimination is when a firm or employer selects a person for a role solely because they have a protected characteristic - things like age, race, sexual orientation, and disability fall under this term. The firm selects the individual with a protected characteristic above those who are potentially more qualified for the position or promotion purely because they are looking to boost quotas/tick boxes. Positive discrimination is illegal in the UK.

What is positive action?

Positive action gives employers, firms and recruiters the power to select an individual that has one or more protected characteristics for a role or promotion providing that:

  1. The recruiter/employer reasonably thinks that there is a disadvantage to persons with a protected characteristic, or 
  2. Participation in an activity by persons who share a protected characteristic is disproportionately low

The recruiter can then legally favour a candidate if they have a protected characteristic, but only if:

  • The individual is equally as qualified as the other highly-placed candidates
  • The recruiter isn’t acting on a policy of favouritism (where they routinely select candidates with one common protected characteristic)
  • Taking this action is a proportionate means of overcoming or minimising a disadvantage or lack of participation

The only other instance where it is legal for an employer to treat a candidate favourably is if they are disabled. 

Positive action could be argued as being a legalisation of positive discrimination, something that is painting over the cracks in our society. A real resolution - which has the aim of rendering any sort of action unnecessary - would be to remove biases during early education.

What are the legalities surrounding positive discrimination & positive action?

As set out above, the legalities surrounding positive discrimination and positive action are all centred around individuals with a ‘protected characteristic’. For the purposes of the Equality Act, these are defined as:

  • Age Disability
  • Gender reassignment
  • Marriage and civil partnership
  • Pregnancy and maternity
  • Race
  • Religion and belief
  • Sex
  • Sexual orientation

The main difference between positive discrimination and positive action is that positive action is entirely voluntary and involves candidates of equal merit, rather than one who is being favoured based solely on one of the characteristics set out above. 

When it comes to the recruitment or promotion process itself, the legality centres around your reasonable thought as to underrepresentation or lack of participation. What this translates to is that there must be sufficient evidence, if required, to prove that a person with that protected characteristic is suffering from a disadvantage or lack of access. This proves that you have a genuine desire to change the shape of your organisation and are invested in diversity and inclusion. 

Benefits of positive action

Having a diverse workforce has proven to be better for business. With such a varied meeting of minds, your business enjoys enhanced idea generation and problem-solving. Diversity and inclusion practices have also been linked to retaining talent

However, it’s vital that you strike the right balance, and ensure all employees are educated on the importance of inclusion in order to avoid clashes of culture and even conflict. In a room where there are too many voices, your employees may feel that theirs isn’t getting heard, which could be even worse for those with protected characteristics.

How to navigate your way through positive action

By actively educating everyone on your interview panel on how to remove bias, and implementing a diverse interview panel where possible, you will be doing everything legally - and getting the best for both you and your candidate. Additionally, if you have a strong company culture and no biases, you should be able to recruit a diverse workforce. While that may sound simple, this is actually quite complex to master, and this is where working with recruitment experts can support you in ensuring a level playing field.

However, if you have identified an area where specific minority groups are at a disadvantage or simply not even present, you’ll be legally allowed to select candidates of equal merit, and we at Hanover can of course accommodate this. 

It’s vital that you address things that are ingrained into your practices but may be adverse to diversity, such as requiring ‘X years experience’ or actively seeking graduates from certain universities or with grades above a certain level. 

It’s also possible to widen your entry points to get an even stronger pool of candidates. As part of this, it’s important to consider socio-economic backgrounds. Individuals born into wealthier families, for example, will have been presented with superior opportunities when it comes to education and training. People who’ve attended an elite university or have had private education can also be more outrightly competitive than someone who’s excelled through state education and hasn’t been to an elite university.

 If we really want an equal society, we must even out the playing field and provide equal opportunities.

And that’s what it’s all about - as idealistic as it may sound, we have to strive for a society in which everyone is treated equally, regardless of age, gender, where they went to university, or disability. While positive action may be the best option we have right now, it’s not a sustainable, long-term solution. We have to do better.

Approaching positive action the Hanover way

If you need support in how to approach positive action through your hiring process, contact me directly and let’s schedule a call.

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