Positive action

Although it is unlawful to positively discriminate in favour of protected groups (other than in relation to disabled people) section 158 of EA 2010 allows employers to take positive action. In 2012, the government enacted section 159 which is a form of positive discrimination, although optional for the employer.

Positive action means taking steps to benefit a particular group without treating another group less favourably. However, an employer can only take action where participation by a protected group is disproportionately low (section 158(2) EA 2010) and the steps must be proportionate.

Acas advises:

“You can take positive action to prevent or compensate for disadvantages linked to age where it reasonably appears that it will prevent or compensate for the disadvantages. This might involve:

• giving people of a particular age access to vocational training; or

• encouraging people of a particular age to take up employment opportunities.

For example, you might place advertisements where they are more likely to be seen by people in a disadvantaged group. Or you might limit access to a computer training course to those over 60 because there is evidence to show they may have had less exposure to such training in the past.”