Positive action in UK recruitment: what the Equality Act 2010 allows

Positive action is lawful in UK recruitment under sections 158 and 159 of the Equality Act 2010. An employer that reasonably thinks a group sharing a protected characteristic is disadvantaged or under-represented can take proportionate steps to encourage that group to apply, such as targeted adverts, welcoming statements and open days, and can use a "tie-breaker" to prefer a candidate from that group when two candidates are as qualified as each other. Positive discrimination, meaning quotas or choosing someone because of a characteristic regardless of merit, is unlawful, as the Furlong employment tribunal case showed. Disability is the exception: favoring disabled people is lawful. This is the position in England, Wales and Scotland as of October 2026.

The rules are narrower than US-style diversity programs, and the UK government's guidance warns employers "not to use American resources about affirmative action, as they do not set out the legal position in this country." For the US position, see is diversity hiring legal in the US?

What is allowed and what is not, at a glance

What do sections 158 and 159 say?

Both sections start from the same trigger: the employer "reasonably thinks" that people who share a protected characteristic "suffer a disadvantage connected to the characteristic," or that their "participation in an activity ... is disproportionately low." Section 158 adds a third trigger, that the group has different needs.

Section 158 then allows "any action which is a proportionate means of achieving the aim of" enabling or encouraging that group to overcome the disadvantage, meet those needs or participate (Equality Act 2010, s.158). In recruitment this covers the steps before selection: who hears about the job and who is encouraged and prepared to apply.

Section 159 is the only part that allows preferring a candidate at the point of decision. It permits "treating a person (A) more favourably in connection with recruitment or promotion than another person (B) because A has the protected characteristic but B does not," but only if:

• "A is as qualified as B to be recruited or promoted";
• the employer "does not have a policy of treating persons who share the protected characteristic more favourably in connection with recruitment or promotion"; and
• "taking the action in question is a proportionate means of achieving the aim"

(s.159(4)). Both sections are voluntary; no employer is required to use them.

What evidence do you need before taking positive action?

The test is "reasonably thinks," not proof. The Government Equalities Office's 2023 guidance says employers "should collate evidence, for example through their monitoring data, and analyse that evidence" before deciding what to do (GEO, Positive action in the workplace). In practice that is your own applicant and workforce data by stage, compared with the relevant labor market or sector. Write down what you found, which group and role it concerns, what you will do, and when you will review it; the guidance stresses that measures should be time-limited and reviewed so they stay proportionate.

How does the tie-breaker work in practice?

The EHRC's supplement to its Employment Code says employers should set "a set of criteria against which candidates will be assessed," which can include "overall ability, competence and professional experience together with any relevant formal or academic qualifications, as well as any other qualities required to carry out the particular job" (EHRC supplement). Only when two candidates come out genuinely level against those criteria can the characteristic decide it.

The supplement's own example: a counseling service for teenagers with no Muslim employees, in an area with a high Muslim population, has two candidates of equal merit for a vacancy, one Muslim and one not. It can choose the Muslim candidate to address the under-representation, and the other candidate cannot claim discrimination, provided the service has no policy of always doing so. A higher academic qualification does not automatically make someone better qualified for a particular job, the supplement adds; it depends on the job.

Three practical rules follow:

1. Score candidates on structured, job-related criteria first, so "as qualified as" is a finding, not a feeling. Structured interviews help; see how to reduce bias in interviews.
2. Decide each tie on its facts. A standing rule that the under-represented candidate always wins a tie is the "policy" s.159(4)(b) forbids.
3. Keep the scores and the reason for the tie-break with the hiring record.

What did the Furlong case decide?

In Furlong v Chief Constable of Cheshire Police (Case No. 2405577/18), a white heterosexual man passed the force's assessment center and interview but was rejected, and the force said it had applied positive action under s.159. The force had treated all candidates who passed its tests, regardless of score, as equally qualified and then prioritized ethnic minority candidates. As the GEO guidance summarizes it, the tribunal found the force had "set an artificially low threshold in their recruitment tests and it was wrong that all 127 candidates were equally suitable for the job," and that the blanket approach was not a proportionate means of achieving its legitimate aim. The claim of direct discrimination on grounds of sexual orientation, race and sex succeeded. It is a first-instance tribunal decision, but the government cites it as the example to avoid.

Why is disability treated differently?

Section 13(3) provides that where the characteristic is disability and B is not disabled, "A does not discriminate against B only because A treats or would treat disabled persons more favourably than A treats B" (s.13(3)). So schemes that favor disabled candidates do not need the s.159 conditions. The EHRC's Employment Statutory Code describes guaranteed interview schemes, under which a disabled candidate "will be short-listed for interview automatically if they demonstrate that they meet the minimum criteria for getting the job" (para 16.51). The Act's ban on asking about health before an offer has an exception for questions needed to take such action (s.60(6)(d)); explain to applicants why you are asking. Our guide on neurodivergent interview accommodations covers adjustments.

What counts as unlawful positive discrimination?

The EHRC's code says "positive action is not the same as positive discrimination, which is unlawful" (para 12.4), and gives the example of an LLP interviewing all women "regardless of whether they meet the criteria for partnership." The GEO guidance lists initiatives that "would probably constitute unlawful discrimination":

• recruiting or promoting a person solely because they have a relevant protected characteristic;
• "setting quotas (as opposed to targets) to recruit or promote a particular number or proportion of people with protected characteristics irrespective of merit";
• reserving places on interview panels for people with particular characteristics, irrespective of whether more suitable candidates are excluded;
• creating schemes for a group "without any evidence that the group in question is at a disadvantage or has different needs."

Targets are different: they are aspirations that guide outreach, not requirements that override merit at selection.

How should agency recruiters handle client diversity requests?

Agencies are "employment service-providers" and "must not discriminate" in selecting the people they provide services to (s.55; the definition in s.56 includes "supplying employers with persons to do work"). A client brief to send "only female candidates" or a shortlist with a fixed number from one group cannot be followed as written. What an agency can do is widen the search: source through networks and job boards that reach the under-represented group, write adverts with encouraging statements, and present the strongest candidates on merit. If two finalists are genuinely equal, the hiring decision, including any s.159 tie-break, belongs to the client. Interview records then show the basis, which also matters for UK GDPR and for any tribunal claim.

A positive action checklist

• Evidence of disadvantage or under-representation, from monitoring data, written down for the specific group and roles.
• Outreach measures (adverts, statements, open days, training) chosen, proportionate and time-limited.
• Structured criteria set before applications are assessed; no lowered thresholds to create ties.
• Tie-breaks decided case by case and recorded; no standing policy of preference.
• No quotas, reserved interview places or single-group shortlists.
• Disability schemes (such as guaranteed interviews) explained to applicants, with the reason for any disability question.
• Agency briefs checked against s.55; client requests for single-group shortlists declined.
• Review date set to check the measures still meet the conditions.