When an employer may make a decision based on age, race or another protected characteristic

Helping a disadvantaged or under-represented group

In some cases, an employer might be able to help someone because of a protected characteristic (such as sex or race). This is known as 'positive action'.

There are 2 types of positive action:

  • making the workplace fairer for a disadvantaged or under-represented group
  • taking action when hiring 

Taking positive action to make the workplace fairer for a disadvantaged or under-represented group

An employer might be able to help an employee because of a protected characteristic, if any of the following apply:

  • they're at a disadvantage
  • they're under-represented in the organisation
  • they have specific needs

The employer must be able to prove this action does not discriminate against others.

For example, an employer could encourage their female employees to take up management training, if nearly all the existing managers in the firm are men and the customers are mainly female. 

This would be to:

  • increase women's confidence in applying for management positions
  • make the balance between the sexes fairer

Taking positive action when hiring

In very rare cases, it might be legal to use a protected characteristic to decide who gets a job. 

The employer must be able to prove they're taking this action (known as a 'tie-breaker') because either:

  • an applicant with the protected characteristic is disadvantaged because of it
  • people with the protected characteristic are under-represented in that job

A tie-breaker can only be used by an employer when both of the following apply:

  • they're deciding who gets an individual job
  • they're deciding between applicants who are otherwise equally able to do that job

When hiring in future

If an employer does use a tie-breaker, it may not be legal to automatically make the same decision again when hiring in the future. The employer must make sure each hiring decision they take is based on the circumstances of each case.

A school has many pupils from ethnic minority backgrounds, including a large number of black pupils. No heads of department are from ethnic minority backgrounds. 

The school advertises for a new head of maths. The advert says they welcome qualified applicants from ethnic minorities, as they're under-represented in this kind of senior job.

In the hiring process, the two best candidates are rated as equally suitable for the job based on their qualifications and experience. One of the candidates is black and the other is white.

At the end of the process the headmaster decides to hire the black candidate, to improve diversity in the school.
It can be a good idea to get legal advice before taking action that relates to a protected characteristic.