Section 159 Equality Act 2010

Section 159 of the Equality Act 2010, which came into force on 6 April 2011, allows an employer to treat an applicant or employee with a protected characteristic (for example, race, sex or age) more favourably in connection with recruitment or promotion than someone without that characteristic who is as qualified for the role.

It is lawful under s.158 of the Equality Act 2010 for an employer to take action to compensate for disadvantages that it reasonably believes are faced by people who share a particular protected characteristic (i.e. age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex or sexual orientation).

Separate provisions allowing positive action in relation to recruitment and promotion in limited circumstances are contained in s.159 of the Act.

Positive action is lawful if it is taken to:

• enable or encourage people who share a protected characteristic to overcome a disadvantage connected to the characteristic;
• meet the needs of people who share a protected characteristic where those needs are different to those of people who do not have the characteristic; or
• enable or encourage people who share a protected characteristic to participate in an activity in which their participation is disproportionately low.