What Is the Difference Between Positive Action and Positive Discrimination?
Positive action (legal) and positive discrimination (illegal) are not the same. Here, we look at the differences, with examples of both.
What is this advice about?
This advice aims to clarify the difference between positive action and discrimination, covering the language most commonly used when recruiting people for roles or making opportunities available.
What are the key points?
- Positive action is not the same as positive discrimination
- Protected characteristics are characteristics of people that are legally protected from discrimination. They are: age, gender reassignment, being married or in a civil partnership, being pregnant or on maternity leave, disability, race, nationality, ethnic or national origin, religion or belief, sex, and sexual orientation
- Positive action is a lawful way to proactively encourage participation, recognise the disadvantages faced by people with protected characteristics, and take steps to remove those barriers. For example, during the recruitment process where you may use inclusive language, make large print application forms, advertise through organisations working with protected characteristic groups, or consider whether specific qualification requirements are really necessary for the role
- Positive discrimination is against the law. An example is employing someone purely on the grounds of their protected characteristic without taking into consideration their experience, skills or knowledge
What are protected characteristics?
Protected characteristics are protected legally from discrimination.
Defined by the Equality Act 2010, they cover:
- Age
- Gender reassignment
- Being married or in a civil partnership
- Being pregnant or on maternity leave
- Disability
- Race (including colour, nationality, ethnic or national origin)
- Religion or belief
- Sex
- Sexual orientation
What is positive action?
Positive action is good practice for employers and a lawful way to proactively encourage participation and remove barriers for people.
It is about recognising the disadvantages faced by people with protected characteristics and taking steps to remove barriers.
An example is the job application process, where the aim should be to make applying for a role easier for a wider range of people to attract a broader and more diverse pool of candidates.
It is a way of addressing discrimination against those with protected characteristics who are at a disadvantage, have particular needs, or are under-represented in an activity or type of work.
Examples of positive action include:
- Using more inclusive language in job adverts and descriptions
- Making multiple accessible versions of application forms or literature available, such as large print versions
- Advertising roles through specific organisations aimed at people with particular protected characteristics
- Noting in the job application pack that applications from those currently underrepresented in the workforce are encouraged
- Considering whether particular qualifications are truly essential for a role or if relevant experience and knowledge could be used as criteria instead
- Having flexible working arrangements for disabled people or candidates with caring responsibilities
By removing barriers, an employer should aim to even the playing field so everyone can access a fair and legitimate selection and interview process.
What is positive discrimination?
Positive discrimination is against the law. It occurs when someone is given preferential treatment purely because of a protected characteristic.
It might involve employing someone purely on the grounds of their protected characteristic without considering their experience, skills, or knowledge at the expense of a more qualified candidate.
It might also involve setting a quota for recruitment from a particular protected characteristic.
When should I make reasonable adjustments for disabled people?
Employers must make reasonable adjustments for disabled people in the workplace, including during recruitment. This is an example of positive action.
You should make reasonable adjustments to the assessment process so that disabled people can compete on a level basis. If a candidate has shared that they have a disability, contact them to discuss whether any reasonable adjustments to the selection process are needed.
These might include allowing them to bring an interpreter to interview, providing materials in an alternative format or allowing additional time to complete a test.
Adjustments like these can help ensure that the selection process measures candidates' suitability for the role, not the impact of their disability on it.
During an interview, you may only ask questions about a person's disability that are relevant to their ability to do the job. For example, you can discuss possible reasonable adjustments so that you can better assess their capabilities.
What is the Disability Confident Employer Scheme?
Like many organisations across the UK, Historic England is committed to the Disability Confident standards. These guarantee a competitive interview for disabled candidates who at least meet the essential criteria for a vacancy and enable reasonable adjustments to be taken into account so that the disabled person is considered based on their suitability for the role.
The Disability Confident scheme aims to help employers maximise the opportunities provided by employing disabled people. It is voluntary and was developed by employers and disabled people’s representatives.
Learn more about the Disability Confident employer scheme, including how to sign up.
Further reading
Discrimination: Your Rights. An outline of the protected characteristics, what counts as discrimination, and what actions can be taken if you have been discriminated against.
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