Positive Action
In UK Policing
Definitive institutional analysis of Sections 158 & 159 of the Equality Act 2010, operational merit boundaries, tie-breaker mechanisms and the absolute prohibition of quotas.
Independent explanatory guidance. Based exclusively on the statutory framework of the Equality Act 2010, College of Policing frameworks and national workforce data. This hub provides neutral regulatory analysis without advocacy or institutional spin.
Positive action is a lawful empowerment, not an organizational preference. It permits proportionate measures to address disadvantage, but it never overrides the fundamental principle of merit-based selection.
In the context of 2026 UK policing, positive action represents the legal voluntary powers within Sections 158 and 159 of the Equality Act. It is defined by what it is not: it is not positive discrimination, it is not a quota system, and it is not a mechanism for lowering operational standards.
Forces frequently face legal risk when precision is sacrificed for haste. Unlawful application occurs when interventions bypass objective merit thresholds or when Section 159 tie-breakers are applied without establishing identical candidate scores. In a high-risk operational environment like policing, legal precision is the only safeguard against direct discrimination claims and the erosion of institutional competence.
Is Positive Action Legal in UK Policing?
Positive action is lawful under Sections 158 and 159 of the Equality Act 2010. It permits proportionate, evidence-based measures to address disadvantage or underrepresentation. It does not permit quotas, automatic preference, lower standards, or bypassing merit-based assessments. In policing, positive action may apply before assessment (mentoring, outreach) and at the final tie-break stage only where candidates are of equal merit. All interventions must remain proportionate, time-limited, and backed by a robust Equality Impact Assessment (EIA).
The Legal Narrative
To operate lawfully, a force must distinguish between encouraging a more diverse pool of talent and guaranteeing a specific outcome. The former is positive action; the latter is unlawful discrimination. The 'Merit Wall' is the structural requirement that every candidate who succeeds must have met the objective standard, regardless of any support provided earlier in the process.
Documentation is the primary defense in equality law. Every positive action initiative—from a pre-assessment CVF masterclass to a Section 159 tie-break selection—must be supported by statistical evidence of a representative gap and a clearly documented rationale for why the chosen intervention is proportionate. Without this audit trail, the force is legally defenseless against claims of bias.
Lawful Boundary
- Targeted Mentoring & Coaching
- Outreach to Underrepresented Areas
- Pre-Assessment CVF Masterclasses
- Equal Merit Section 159 Tie-Break
Unlawful Discrimination
- Quotas or Reserving Positions
- Automatic Promotion or Selection
- Lowered Entry or Pass Mark Standards
- Bypassing Merit Stages completely
Operational Lifecycle
Data Foundation
Interventions begin with statistical proof (EIA) of a significant demographic gap. Without data, the intervention is legally void.
Section 158 Support
Lawful 'pre-wall' support—mentoring, insight days, and training—designed to expand the merit pool before assessment.
The Neutral Wall
Objective assessment (OAC, Board, Exam) where all support ceases. Standards are identical and strictly merit-based.
Section 159 Tie-Break
Only if two candidates score identically can selection preference occur as a proportionate remedy.
The Proportionality
Test (800 Words)
What is the proportionality test in police positive action?
The proportionality test is the constitutional backbone of lawful positive action in UK policing. Under the Equality Act 2010, any measure taken to address underrepresentation must be 'a proportionate means of achieving a legitimate aim.' This is not a vague guideline; it is a rigid legal threshold that determines whether an intervention is a lawful empowerment or a direct violation of the law.
1. The Legitimate Aim
The aim must be specific and evidence-based. In policing, this usually involves data showing that a particular demographic (e.g., female officers in tactical firearms roles) is significantly underrepresented compared to the available workforce. A vague desire for 'more diversity' is not a legitimate aim; it must be a documented gap that creates operational or representative risks.
2. The Rational Connection
There must be a causal link between the action taken and the aim. If an outreach program for minority youth is used to justify a Section 159 tie-breaker at the Superintendent level, the rational connection is weak. The intervention must be logically designed to solve the specific disadvantage documented in the force's Equality Impact Assessment.
3. Least Intrusive Means
This is where most force policies fail. A force must consider if the aim could be achieved through a less discriminatory method. For example, if targeted mentoring (Section 158) would fix the representation gap, then using a tie-breaker (Section 159) may be deemed disproportionate because it is more intrusive to the rights of other candidates.
4. Time Limitation & Review
Positive action is a temporary remedy. It is only lawful for as long as the disadvantage exists. Forces must implement a formal review cycle (usually annual) to verify that the intervention is still necessary. If the data shows the gap has closed, the positive action must cease immediately or it becomes direct discrimination.
In a landmark 2026 workforce study, it was noted that the judicial review of police recruitment often centers on the documentation of these four stages. A Chief Officer must be able to prove, through an audit trail of data and legal advice, that they did not simply choose the 'easiest' path to diversity, but the one that most precisely balanced the need for representation with the statutory rights of the individual.
Furthermore, the test requires a balance between the benefit to the protected group and the impact on those who do not share that characteristic. In policing, where career progression is highly competitive, every positive action intervention effectively displaces another officer. This displacement must be objectively justifiable as necessary for the operational health of the force.
Where Forces Get It Wrong
Waiting List Manipulation
Automatically moving underrepresented candidates to the top of training waitlists (e.g., Taser or Driving) without establishing 'equal merit' or proportionality.
Stage Bypass
Allowing candidates to skip mandatory assessment stages (like the Bleep Test or initial paper sift) to ensure a diverse final interview pool.
Lowered Pass Marks
Implementing different scoring thresholds for protected characteristics in promotion boards or specialist role selection.
Undocumented Tie-Breaking
Applying Section 159 where candidates' scores are distinct (e.g., 78% vs 76%), falsely claiming they are 'equally qualified'.
Authority Directory
Our definitive cluster of guidance on policing equality law and workforce regulation.
Foundational Law
Equality Act 2010 Explained
Comprehensive analysis of discrimination law, Sections 13, 19, 20, 149 and Positive Action.
Action vs Discrimination
Authority guide defining the legal limits and boundaries between support and unlawful preference.
Section 159 Tie-Breaker
Deep-dive into the 'equal merit' provision and how it operates in promotion boards.
Policy Application
Equality Impact Assessments
How forces mathematically justify scheme interventions using data-driven EIAs.
Development Scheme Limits
Lawful boundaries for mentoring, masterclasses, and professional pathways.
Promotion Board Equality
Ensuring CVF merit adherence and objective scoring during initiatives.
Representation Targets
Distinguishing between aspirational targets and unlawful quota systems.
Governance Briefings
for Police Leaders
We publish independent, regulation-based analysis of equality law, workforce governance and operational risk in UK policing.
Stay Ahead of Equality Law
Receive independent updates on Equality Act developments, Tribunal case law, and promotion governance.
Common Search Questions
Regulatory analysis of the most frequent queries regarding positive action in policing.
Can police forces use quotas for recruitment?
No. Quotas—where a specific number of roles are reserved for individuals based on protected characteristics—are strictly illegal under the Equality Act 2010. Policing must remain 100% merit-based. Any attempt to bypass the merit threshold to achieve a specific demographic outcome constitutes unlawful positive discrimination and exposes the force to significant legal liability.
What is the legal definition of 'equal merit' in policing?
Equal merit occurs when two or more candidates have satisfied all assessment criteria to an identical standard, making them effectively indistinguishable in terms of their suitability for the role. In policing, this is determined by objective scoring in promotion boards, OAC results, or specialist course assessments. Only when this exact equality in merit is established can the Section 159 tie-breaker provision be lawfully considered.
Is positive action mandatory for police forces?
No. Positive action is a voluntary power granted under Sections 158 and 159 of the Equality Act. While the Public Sector Equality Duty (Section 149) requires forces to 'have due regard' to the need to advance equality of opportunity, it does not mandate the use of positive action interventions. The decision to use these powers rests with the Chief Officer, supported by a robust Equality Impact Assessment.
Can police officers challenge positive action decisions?
Yes. Any officer who believes they were unfairly disadvantaged by an intervention that exceeded the legal boundaries of positive action can file a grievance or an Employment Tribunal claim for direct discrimination. Successful challenges often hinge on proving that the 'equally qualified' threshold was not met or that the proportionality test was failed by the force.
Does positive action apply to specialist training courses?
Yes. Section 158 allows for targeted support to encourage applications for specialist roles (e.g., Firearms or CID) from underrepresented groups. However, access to the course itself and the final qualification must remain strictly merit-based. Section 159 cannot be used to bypass waiting lists or lower the operational pass marks for specialist driving or tactical courses.
Does positive action affect police misconduct proceedings?
Absolutely not. Positive action relates exclusively to recruitment, promotion, and professional development. It has no lawful application in disciplinary or misconduct matters. Protected characteristics provide no mitigation for breaches of the Standards of Professional Behaviour, and applying any preference in such hearings would be a fundamental breach of the Equality Act.
Can't standards be lowered to improve representation?
Never. Lowering standards—whether physical, academic, or professional—to accommodate a specific protected group is a direct violation of the Equality Act. It constitutes direct discrimination against those who would have met the original standard. In policing, maintaining national standards (such as the Bleep Test or OAC pass marks) is non-negotiable for operational safety and public trust.
What is Section 158 of the Equality Act?
Section 158 permits 'General Positive Action.' This allows forces to take proportionate steps to encourage participation or minimize disadvantage for underrepresented groups. Common examples include targeted recruitment advertising, 'insight' sessions for specialist units, and mentoring programs designed to support candidates before they reach the formal assessment stage.
What is Section 159 of the Equality Act?
Section 159 is the 'Tie-Breaker' provision. It allows an employer to choose a candidate from an underrepresented group in recruitment or promotion, but ONLY if they are equally qualified to the other candidates. It cannot be a policy of blanket preference; it must be a case-by-case decision where the candidates are of equal merit and the intervention is a proportionate means of achieving a legitimate aim.
What is the Public Sector Equality Duty (PSED)?
Section 149 of the Equality Act (PSED) requires all public bodies, including the police, to consider how their policies and decisions affect people with protected characteristics. It mandates that forces work to eliminate discrimination, advance equality of opportunity, and foster good relations. This duty provides the strategic context within which positive action powers may be exercised.
What is the 'Proportionality Test'?
The proportionality test is a four-part legal requirement for any positive action measure. It must have a 'legitimate aim' (e.g., fixing a representation gap), a 'rational connection' (the action will actually help), be the 'least intrusive' way to solve the problem, and be strictly 'time-limited'. If an intervention is more intrusive than necessary, it is unlawful.
Can forces prioritize waiting lists for driving courses?
Generally, no. Unless a force can prove that prioritizing a specific group is a 'proportionate means of achieving a legitimate aim' (which is extremely difficult for operational training), they must adhere to standard chronological or merit-based waiting list protocols. Bypassing a long-term waiting list purely for demographic reasons is highly likely to be ruled discriminatory.
Is 'Reverse Discrimination' a legal term?
No. UK law simply recognizes 'discrimination.' If an officer is treated less favorably because they do NOT possess a certain protected characteristic (even if the employer's intent was to help another group), it is direct discrimination. The term 'reverse discrimination' is colloquially used but has no distinct legal standing; the law treats all direct discrimination as equally unlawful.
When must positive action stop?
Positive action must stop as soon as the candidate enters the formal, objective assessment phase (the 'Neutral Wall'). During an exam, fitness test, or interview board, no interventions can occur. The only exception is the Section 159 tie-breaker, which only activates AFTER the assessment has concluded with an identical score for candidates.
Who is responsible for the legality of positive action?
The Chief Constable is ultimately legally responsible for the force's application of the Equality Act. Operationally, Positive Action leads and HR Directors must ensure that every initiative is backed by a current, data-rich Equality Impact Assessment and has been cleared by force legal teams to avoid tribunal exposure.
Can training budget be ring-fenced for positive action?
Funds can be allocated for targeted support activities (Section 158), such as paying for mentors or organizing outreach events. However, the budget for actual operational qualifications (e.g., PSU or Taser training) cannot be ring-fenced to exclude certain groups. Every officer must have equal access to apply for core operational training.
How does the 'Merit Wall' function in promotion?
The Merit Wall ensures that every candidate promoted has surpassed the required competency threshold (e.g., CVF Level 2). Positive action may help prepare candidates for the board, but once they walk into the room, their performance alone determines their score. The 'Wall' protects the integrity of the rank structure and ensures leadship remains capable.
Does positive action apply to civil staff (Police Staff)?
Yes. The Equality Act provisions (Sections 158 and 159) apply to all employees, including police staff. The same rules regarding proportionality, merit-based assessment, and the prohibition of quotas apply to staff recruitment and internal career progression just as they do for sworn officers.
What role does workforce data play?
Data is the legal foundation. A force cannot lawfully use positive action without specific statistical evidence of underrepresentation or disadvantage. This evidence must be detailed and up-to-date, usually forming part of the 'legitimate aim' section of an Equality Impact Assessment (EIA).
Are 'Representation Targets' the same as quotas?
No. A target is an aspirational goal (e.g., 'We want our workforce to reflect the 15% local minority population'). It is a benchmark for success. A quota is a hard limit or mandatory requirement (e.g., '15% of this intake MUST be from a minority'). Targets are lawful strategic tools; quotas are unlawful operational barriers.
Can positive action be used for 'Redundancy' selection?
In theory, Section 159 (the tie-breaker) could apply if two people in a redundancy pool are of identical merit. However, using positive action to protect underrepresented groups from redundancy is extremely legally risky and is generally avoided by force solicitors due to the high likelihood of successful legal challenge from those made redundant.
What is an Equality Impact Assessment (EIA)?
An EIA is a formal document that analyzes a policy to identify potential impacts on different protected groups. For positive action, the EIA serves as the 'legal defense' for the intervention, documenting the evidence of disadvantage, the specific aim, and why the chosen measure is proportionate and necessary.
Does positive action apply to age or disability?
Yes. Positive action can be applied to any of the nine protected characteristics under the Equality Act, including age and disability. For example, a force might run a program to encourage applications from older candidates or provide pre-application support for individuals with neurodivergent conditions.
Are 'Fast Track' schemes positive action?
Some fast-track schemes are open to everyone and are simply merit-based talent management. However, if a specific pathway is designed to attract and progress underrepresented groups, it must be governed by Section 158 and meet all the standard legal tests for transparency, merit, and proportionality.
Can positive action fix historical discrimination?
The Equality Act is focused on current disadvantage and underrepresentation, not necessarily 'reparations' for the past. While historical factors may explain current gaps, the legal justification for positive action must be based on contemporary data and a forward-looking aim to achieve equality of opportunity today.