Part 11 E+W+SAdvancement of equality

Chapter 2E+W+SPositive action

158Positive action: generalE+W+S

(1)This section applies if a person (P) reasonably thinks that—

(a)persons who share a protected characteristic suffer a disadvantage connected to the characteristic,

(b)persons who share a protected characteristic have needs that are different from the needs of persons who do not share it, or

(c)participation in an activity by persons who share a protected characteristic is disproportionately low.

(2)This Act does not prohibit P from taking any action which is a proportionate means of achieving the aim of—

(a)enabling or encouraging persons who share the protected characteristic to overcome or minimise that disadvantage,

(b)meeting those needs, or

(c)enabling or encouraging persons who share the protected characteristic to participate in that activity.

(3)Regulations may specify action, or descriptions of action, to which subsection (2) does not apply.

(4)This section does not apply to—

(a)action within section 159(3), or

(b)anything that is permitted by virtue of section 104.

(5)If section 104(7) is repealed by virtue of section 105, this section will not apply to anything that would have been so permitted but for the repeal.

(6)This section does not enable P to do anything that is prohibited by or under an enactment other than this Act.

159Positive action: recruitment and promotionE+W+S

(1)This section applies if a person (P) reasonably thinks that—

(a)persons who share a protected characteristic suffer a disadvantage connected to the characteristic, or

(b)participation in an activity by persons who share a protected characteristic is disproportionately low.

(2)Part 5 (work) does not prohibit P from taking action within subsection (3) with the aim of enabling or encouraging persons who share the protected characteristic to—

(a)overcome or minimise that disadvantage, or

(b)participate in that activity.

(3)That action is treating a person (A) more favourably in connection with recruitment or promotion than another person (B) because A has the protected characteristic but B does not.

(4)But subsection (2) applies only if—

(a)A is as qualified as B to be recruited or promoted,

(b)P does not have a policy of treating persons who share the protected characteristic more favourably in connection with recruitment or promotion than persons who do not share it, and

(c)taking the action in question is a proportionate means of achieving the aim referred to in subsection (2).

(5)“Recruitment” means a process for deciding whether to—

(a)offer employment to a person,

(b)make contract work available to a contract worker,

(c)offer a person a position as a partner in a firm or proposed firm,

(d)offer a person a position as a member of an LLP or proposed LLP,

(e)offer a person a pupillage or tenancy in barristers' chambers,

(f)take a person as an advocate's devil or offer a person membership of an advocate's stable,

(g)offer a person an appointment to a personal office,

(h)offer a person an appointment to a public office, recommend a person for such an appointment or approve a person's appointment to a public office, or

(i)offer a person a service for finding employment.

(6)This section does not enable P to do anything that is prohibited by or under an enactment other than this Act.