Part 11

Advancement of equality
Chapter 2

Positive action

Positive action: recruitment and promotion
159
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.
S. 159 wholly in force at 6.4.2011; s. 159 not in force at Royal Assent see s. 216; s. 159(3) in force for certain purposes at 1.10.2010 by S.I. 2010/2317, art. 2(1)(11)(b) (with art. 15); s. 159 in force so far as not already in force at 6.4.2011 by S.I. 2011/96, art. 3
Pt. 11 applied (with modifications) (22.11.2012) by The Police and Crime Panels (Application of Local Authority Enactments) Regulations 2012 (S.I. 2012/2734), regs. 3-6, Sch.
S. 159 excluded by 2005 c. 4, s. 27(5A)(a) (as inserted (15.7.2013) by Crime and Courts Act 2013 (c. 22), s. 61(3), Sch. 13 para. 9; S.I. 2013/1725, art. 2(g))
S. 159 excluded (S.) (29.5.2020) by Gender Representation on Public Boards (Scotland) Act 2018 (asp 4), ss. 11(1), 13; S.S.I. 2020/119, reg. 2