The Equality and Human Rights Commission (EHRC) defines positive action as ‘the steps that an employer can take to encourage people from groups with different needs or with a past track record of disadvantage or low participation to apply for jobs’. This is not the same as ‘positive discrimination’ or ‘affirmative action’ which equality law does not allow.  

The EHRC suggests that an employer can use positive action where they reasonably think, on the basis of some evidence, that:  

• people who share a protected characteristic suffer a disadvantage connected to that characteristic;
• people who share a protected characteristic have needs that are different from the needs of people who do not share it; or
• participation in an activity by people who share a protected characteristic is disproportionately low.

The above reasons might overlap, for example, people sharing a protected characteristic may be at a disadvantage and that disadvantage may also give rise to a different need or may be reflected in their low level of participation in particular activities. Employers can take proportionate action to:  

• enable or encourage people to overcome or minimise disadvantage;
• meet different needs; or
• enable or encourage participation.

Positive action in recruitment could include encouraging particular groups to apply, or helping people with particular protected characteristics to perform to the best of their ability (for example, by giving them training or support not available to other applicants). An example of when an employer might decide to take positive action is if they find that the makeup of their workforce is different from the makeup of their local population, so they decide to encourage people who share particular under-represented protected characteristics to apply for vacancies.