Positive actions address underrepresentation or disadvantage experienced by people with characteristics protected by the Equality Act 2010 to reduce disadvantage, meet different needs and increase participation.

Employers need to recognise the difference between positive action, which is lawful, and positive discrimination, which is not, and the guidance offers interesting insights.

It underlines that positive action is entirely voluntary and provides some help to employers wishing to put them into practice, echoing the existing guidelines of the Equality and Human Rights Commission (EHRC) in its Employment Code and Supplement and adding the issue of intersectionality.

When thinking about using positive action, employers have to think about the following:

- Why they want to take action: there is the need for evidence that any groups are experiencing barriers;

- What actions they want to take, considering whether they are proportionate to addressing the identified problem. Employers should consider not having a policy of treating someone with a protected characteristic more favourably but consider all candidates on their merits, using tiebreaker provisions where candidates are of equal value. For example, the guidance considers that setting interview quotas (e.g., stipulating that a percentage of candidates selected for interview must be women or ethnic minorities) could constitute positive discrimination, as employers may be forced to put forward less qualified candidates for recruitment or promotion to meet minimum restrictions.

- How they will take action: employers should also set out a plan and timeline for delivering the steps, measure progress and how to consult and communicate with employees.

Finally, the guidance highlights the risks of adopting US affirmative action models that do not reflect the UK’s legal framework.