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Positive action

Purpose: Guide to complying with positive action provisions in the Equality Act 2010.
Scope of application: All practising barristers/chambers
Issued by: Equality, Diversity and Social Mobility Committee
Last reviewed: 01/08/2020
Status and effect: Please see the notice at end of this page. This is not "guidance" for the purposes of the BSB Handbook I6.4.

Positive action is the term used for permitted measures under the Equality Act to remedy the under-representation or disadvantage experienced by members of protected groups in the work place and in specific cases in the provision of goods, facilities or services. The relevant protected characteristics defined in the Equality Act are: race, sex, sexual orientation, gender reassignment, age, disability, marriage or civil partnership, pregnancy or maternity, religion or belief. Section 159 is a new provision which did not exist under the discrimination legislation which preceded the Equality Act 2010. Previously legitimate positive action chiefly consisted of training and special encouragement to be offered on a limited and targeted basis to under-represented groups. This kind of action aimed to enhance access to jobs and services opportunities, but did not permit selection for recruitment or promotion to take place merely because of under-representation. The new Section 159 permits what is usually impermissible: direct discrimination at the point of selection, because of the under-representation of people with a protected characteristic where two candidates are found to be of equal merit.

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Important Notice

This document has been prepared by the Bar Council to assist barristers on matters of professional conduct and ethics. It is not “guidance” for the purposes of the BSB Handbook I6.4, and neither the BSB nor a disciplinary tribunal nor the Legal Ombudsman is bound by any views or advice expressed in it. It does not comprise – and cannot be relied on as giving – legal advice. It has been prepared in good faith, but neither the Bar Council nor any of the individuals responsible for or involved in its preparation accept any responsibility or liability for anything done in reliance on it. For fuller information as to the status and effect of this document, please see here.

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