Do the positive action provisions apply to all protected characteristics?

Yes. The positive action provisions in s.159 of the Equality Act 2010 apply to all the protected characteristics in the Act (ie age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation). However, in relation to disability, in addition to the positive action provisions in s.159, s.13(3) of the Act allows employers to treat a disabled person more favourably in comparison to a non-disabled person. This means that an employer can, for example, take positive action by lawfully limiting recruitment, training and promotion opportunities to disabled people, without this amounting to unlawful discrimination against a non-disabled person.

An employer that finds itself in a tie-break situation in which there is more than one disabled candidate for a job could use the positive action provisions to overcome a disadvantage or address under-representation of people with a particular form of impairment. The government guidance (Equality Act 2010: A quick start guide to using positive action in recruitment and promotion) gives the example of an employer that has to choose between three candidates of equal merit for a post. One of the candidates has a mobility impairment; another has a learning disability; and the third is not disabled. To address the under-representation of people with learning disabilities within the organisation and the local area, the employer is able to use the s.159 positive action power to select the candidate with the learning difficulty. (It should be noted that an employer in a comparable real-life situation would need to be able to establish and document the under-representation that justifies its decision to take positive action.)