Part 11Advancement of equality
Chapter 2Positive action
158Positive action: general
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If section 104(7) is repealed by virtue of section 105, this section will not apply to anything that would have been so permitted but for the repeal.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 promotion
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.