Having a diverse and inclusive workforce is not a moral choice for organisations, it’s a strategic choice. But what do entrepreneurs do to attempt to solve inequality without doing it illicitly? Positive discrimination versus positive action is a legal and ethical tightrope that many employers are now learning to tread.
So let’s unpack that and explore how you can take meaningful strides toward equity while remaining on the right side of the law.
Positive action is a legal way to help create more level playing fields for disadvantaged or underrepresented groups, without excluding others.
Laws like the Equality Act 2010 in the UK, which allows employers to take proportionate steps to:
For example:
If an employer is offering IT training to women only because they want more females to apply to their male-dominated tech department, that is positive action, not discrimination.
In contrast, positive discrimination is, in the UK and many other countries, generally illegal. It means to favour a candidate purely because they have a protected characteristic — even if they’re not equally qualified for the job. This can include:
Although well-meaning, these practices break the principle of equal treatment and could leave businesses vulnerable to legal challenges.
Here’s the nuance, though: UK law permits positive action in so-called “tie-break” situations, where two candidates are “as qualified as each other.”
With that said, an employer may, in law, select the underrepresented group candidate to:
But — and this is crucial — decisions must still be made according to case-by-case merit. Employers cannot utilise broad policies or automatic preferences.
To advocate diversity while remaining in compliance, do the following:
1. Conduct a Diversity Audit: Know who is not well represented in your workforce and the reasons.
2. Adopt Inclusive Hiring Practices: Expand your talent pool by posting on job boards that cater to underrepresented groups, such as DiverseJobsMatter, and implement unbiased screening tools.
3. Train Your Hiring Teams: Educate HR and managers about unconscious bias and legal context.
4. Explanation of Any Positive Action Taken: Have clear documentation about the rationale for taking action and how that action is both proportionate and lawful.
5. Avoid Assumptions: Don’t take it for granted that someone is disadvantaged from appearances — choices need to be made based on evidence and equity.
Why This Matters
It’s not just about following a rule; it’s about creating a workplace where everyone has a fair chance to succeed. Mistakes in this area can impinge on your brand, alienate affiliated employees, and leave a company vulnerable to legal risk. However, when executed well, positive action is a useful tool for closing opportunity gaps and fostering diversity over the long term.
Navigating the line between positive action and positive discrimination takes more than good intentions — it requires clarity, sensitivity, and a firm grasp of legal boundaries.
If you’re committed to inclusive hiring, platforms like OwenReed can help you reach underrepresented talent while staying compliant. Our mission is to support employers in building fairer recruitment practices — not just to fill roles, but to close opportunity gaps across the UK.
Inclusion isn’t about ticking boxes — it’s about dismantling barriers and opening doors. And with the right tools and partners, you can be part of creating a truly equitable future — one hire at a time.
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