Positive Action
vs Discrimination
The definitive legal guide to Equality Act boundaries, merit-based selection, and Section 158 permissions in UK policing.
Snippet Goal: What is Positive Action vs Discrimination?
Positive Action is the lawful use of support and encouragement to help underrepresented groups compete on equal merit.
Under the Equality Act 2010, UK police forces may use Positive Action (Sections 158 and 159) to address documented disadvantage or underrepresentation. Unlike Positive Discrimination, which is generally unlawful, Positive Action must not result in lowered standards or guaranteed outcomes. Selection for recruitment or promotion must always remain an individual assessment based on merit.
Institutional Lens: Positive Action levels the playing field; Positive Discrimination changes the score. For an intervention to be lawful, it must be a proportionate means of achieving a legitimate aim, backed by a robust Equality Impact Assessment (EIA).
Navigating the
Equality Act
The distinction between Positive Action and Positive Discrimination is the most critical boundary in UK workforce law. In the high-stakes environment of policing, where operational competence and public legitimacy are paramount, getting this distinction wrong can lead to costly Employment Tribunals and a loss of workforce trust.
Positive action is legal permission to help; positive discrimination is a legal prohibition on identity-based preference.
The Equality Act 2010 provides the statutory framework for these interventions. It recognizes that "formal equality" (treating everyone exactly the same) is sometimes insufficient to achieve "substantive equality" (ensuring everyone has a fair chance to succeed). However, it balances this by strictly protecting the principle of individual merit.
Section 158
The 'General' power. Allows forces to take proportionate action to address disadvantage, different needs, or low participation. Usually applied to recruitment marketing and development.
Section 159
The 'Tie-breaker' power. Applies only at the point of selection (hiring or promotion). It allows choosing an underrepresented candidate only if they are 100% equally qualified.
Lawful
Positive Action
Lawful Positive Action (S.158) is about pipeline intervention. It addresses the barriers that prevent talented individuals from even reaching the selection board. If certain groups are statistically less likely to apply for a role or pass an exam, the force can act to remove those specific hurdles.
Targeted Marketing
Advertising recruitment specifically in community centers or on platforms popular with underrepresented groups.
Mentoring Schemes
Matching minority officers with senior mentors to bridge the informal networking gap.
Familiarisation Days
Allowing potential applicants to see the equipment, meet the teams, and de-risk the application process.
Exam Workshops
Providing additional legal study support for the NPPF exams to groups with historically lower pass rates.
The key to S.158 is that it is voluntary. An officer can choose to participate in a mentoring scheme, but they cannot be forced into it, nor can those who don't participate be punished. Most importantly, the final selection process must ignore whether or not the candidate used these positive action supports.
The S.159
Tie-Breaker
Section 159 is the "sharp end" of positive action. It is the only place where the law allows a protected characteristic to be used as a "deciding factor" in selection. However, the conditions for using it are so strict that many police HR departments rarely invoke it.
The Three Pillars of S.159
To use the tie-breaker, the force must show:
1. Genuine Underrepresentation: Backed by
recent data.
2. Equal Qualification: Both candidates must
be 'as good as each other' in every objective measure.
3. No Blanket Policy: Each decision must
be made on a case-by-case basis; you cannot have a rule that
'always chooses the minority candidate.'
The hurdle of "Equal Qualification" is where most S.159 attempts fail. In a scoring system where one candidate gets 88% and another gets 87.5%, they are not equal. The tie-breaker can only be used when the assessment results are truly indistinguishable.
Unlawful
Discrimination
Positive Discrimination occurs when identity takes precedence over merit. This is a breach of Section 13 (Direct Discrimination) of the Equality Act. In the UK, with very narrow exceptions (such as the historical '50/50' recruitment in Northern Ireland which required a separate Act of Parliament), this is strictly prohibited.
Quotas & Set-Asides
Reserving a specific number of seats on a firearms course exclusively for one demographic is unlawful.
Lowered Standards
Allowing diverse candidates to pass with a lower bleep test score or interview result is unlawful.
Case Law: Furlong v Cheshire Police (2019). The force was found to have discriminated against a high-scoring white male candidate by using positive action to appoint 127 diverse candidates who had scored lower.
Procedural
Governance
Managing the transition from "Doing Nothing" to "Doing Too Much" requires a structured risk balance. Institutional legitimacy depends on being seen to be fair to all while actively fixing disparities.
Low Risk (Lawful)
- Targeted social media advertising for diverse areas.
- Mentoring and job-shadowing opportunities.
- Feedback sessions for failed candidates from underrepresented groups.
High Risk (Unlawful)
- Automatic interview slots for all diverse applicants.
- Prioritising training course allocation based on ethnicity.
- Overriding a merit-based merit list to meet a target.
Common
Questions
? Is positive discrimination legal in UK policing?
No. Positive discrimination—hiring or promoting someone solely because of a protected characteristic—is generally unlawful in the UK. Police forces must use Positive Action (Section 158/159) to address disadvantage without bypassing individual merit.
? What is the difference between positive action and positive discrimination?
Positive action (lawful) involves providing support, encouragement, or training to underrepresented groups to help them compete on merit. Positive discrimination (unlawful) involves setting aside merit to favor someone based on their identity.
? What is Section 158 of the Equality Act?
Section 158 allows 'general' positive action, such as targeted recruitment campaigns or mentoring, to help groups who are disadvantaged or underrepresented in the workforce.
? What is Section 159 of the Equality Act?
Section 159 is the 'tie-breaker' rule. It allows an employer to choose a candidate from an underrepresented group if they are 'equally qualified' as another candidate, provided the move is proportionate.
? Are police forces allowed to have diversity quotas?
No. Quotas (fixed numbers that must be met) are unlawful in the UK. Forces use 'aspirational targets' which guide strategy but do not mandate specific selection outcomes.
? Can a force run a minority-only recruitment event?
Yes, targeted recruitment events are a classic form of lawful positive action under Section 158. They aim to encourage applications from groups who may not otherwise apply.
? Is the 'tie-breaker' rule used often in police promotions?
It is legally available but used cautiously. For Section 159 to apply, candidates must be strictly 'equally qualified' based on an objective assessment. Many forces avoid it to prevent legal challenges.
? Can training standards be lowered to increase diversity?
No. Lowering competency or safety standards based on a protected characteristic is unlawful positive discrimination. Positive action focuses on helping officers reach the *existing* standard.
? Does 'due regard' in the PSED mean forces *must* use positive action?
The Public Sector Equality Duty (PSED) requires forces to *consider* the need to advance equality. While it doesn't mandate specific positive action, a force that ignores severe disparities may be failing its PSED duties.
? Can an officer challenge a positive action scheme?
Yes. If an officer believes a scheme has crossed the line into unlawful discrimination, they can file an internal grievance or take the case to an Employment Tribunal.
? What was the result of the Furlong v Cheshire Police case?
The court found that Cheshire Police had unlawfully discriminated against a white male candidate by using positive action to reject him in favor of less-qualified diverse candidates. It reaffirmed that merit must remain the primary factor.
? Can white male officers benefit from positive action?
Yes. Positive action can be applied to any group that is underrepresented or disadvantaged in a specific context. For example, if men are severely underrepresented in a specific staff role, positive action could apply to them.
? Is targeted mentoring legal?
Yes, targeted mentoring is an effective and lawful way to bridge the network gap for underrepresented officers, provided it is proportionate and doesn't guarantee a promotion.
? What evidence is needed to justify positive action?
A force must have 'reasonable' belief of disadvantage or underrepresentation, usually backed by workforce data and a formal Equality Impact Assessment (EIA).
? Are 'fast-track' schemes for minorities legal?
Schemes that provide *faster development* are legal. Schemes that provide a *guaranteed fast-track to rank* regardless of comparative merit are high-risk and potentially unlawful.
? Does Section 158 apply to the recruitment of volunteers/specials?
Yes, Section 158 applies to all areas of 'work' including recruitment, training, and promotion for regulars, specials, and staff.
? Can a force set aside specific budget for diversity training?
Yes, allocating resources effectively to meet the PSED and address diversity gaps is a lawful exercise of institutional discretion.
? Is 'implicit bias' training considered positive action?
It is generally considered a form of organizational development and training rather than a Section 158 measure, though it supports the broader aims of equality law.
? Can an EIA be used to defend a positive action scheme?
Yes, the EIA is the primary evidence document that shows a force considered proportionality and legal boundaries before launching a scheme.
? Is positive action the same as 'woke' policing?
No. Positive action is a technical legal framework established by the Equality Act 2010 to ensure a fair and efficient workforce. It is an operational tool, not a political ideology.