When Do Workplace Diversity Policies Become Illegal?

Can an employer legally favour a woman, ethnic minority candidate or another underrepresented applicant when recruiting for a job?

It is a question that regularly generates heated debate around equality and diversity, but UK law draws an important distinction between positive action and positive discrimination.

The difference matters in Newcastle, where the population has become considerably more ethnically diverse and major employers including Newcastle City Council, Newcastle University and Northumbria University operate equality and diversity programmes.

Positive action can be perfectly lawful. Positive discrimination generally is not.

So where exactly is the line?

What is positive action.

Positive action allows an employer to take proportionate steps to help people sharing a protected characteristic when there is evidence of disadvantage, different needs or disproportionately low participation.

Protected characteristics under the Equality Act include race, sex, age, disability, religion or belief and sexual orientation, among others.

An employer might discover, for example, that people from a particular ethnic background are significantly underrepresented in part of its workforce.

It could potentially respond by encouraging applications, providing targeted training, offering mentoring or taking other proportionate steps designed to remove barriers.

Government guidance stresses that employers need a reasonable basis for believing the disadvantage or underrepresentation exists. They should also consider whether their response is proportionate and how its effectiveness will be measured.

Positive action is voluntary. The Equality Act does not generally require employers to use it.

Can ethnicity or sex decide who gets a job.

This is where the law becomes particularly interesting.

The Equality Act contains a limited provision that can allow positive action during recruitment and promotion.

Imagine a Newcastle employer interviews two candidates and, following an objective assessment, concludes that both are genuinely of equal merit for the position.

If one belongs to a group that the employer reasonably believes is disadvantaged or disproportionately underrepresented in its workforce, that characteristic can potentially be considered when making the final decision.

However, there are important safeguards.

An employer cannot have an automatic policy of always selecting the underrepresented group. The decision must be proportionate, and candidates still need to be assessed individually.

Most importantly, the employer cannot choose a weaker candidate simply to increase diversity.

Government guidance is explicit that if one candidate is superior to another, the better candidate should receive the position regardless of their protected characteristics.

What is unlawful positive discrimination.

Positive discrimination occurs when favourable treatment because of a protected characteristic falls outside the lawful positive action provisions or another specific exception.

Government guidance provides some clear examples.

Recruiting or promoting someone solely because they possess a protected characteristic, without satisfying the legal requirements, would probably amount to unlawful discrimination.

Setting recruitment quotas that require a particular number or percentage of positions to go to people with specific protected characteristics regardless of merit would also be problematic.

Employers cannot artificially manipulate recruitment criteria to make unequal candidates appear equally qualified simply so they can use the positive action provisions.

There is an important exception concerning disability. The Equality Act permits employers to treat disabled people more favourably than non-disabled people in ways that would not generally be permitted for other protected characteristics.

Why does this matter in Newcastle.

Newcastle's population has changed substantially.

The 2021 Census found that 80% of Newcastle residents identified within the White ethnic category, down from 85.5% in 2011.

The Asian category increased from 9.7% to 11.4%, while the Black category increased from 1.8% to 3.3%.

Overall, roughly one in five Newcastle residents identified outside the broad White ethnic category.

That compares with just 7% across the North East as a whole, making Newcastle substantially more ethnically diverse than the wider region.

Those demographic changes provide important context for debates about representation within major Newcastle employers.

What are Newcastle employers actually doing.

Local institutions provide real examples of how equality policies operate.

Newcastle City Council signed UNISON's anti-racism charter in 2025, committing itself to measures including ethnicity pay-gap monitoring, equality training and a visible race equality policy.

Its 2024 to 2025 Fair Pay Policy reported that the average hourly rate for ethnic minority employees was 8.68% lower than for White employees, while the median gap was 7.09%.

The existence of a pay gap does not itself prove discrimination. Different occupations, grades, working patterns and workforce composition can affect headline figures. However, such statistics can provide organisations with evidence when considering whether disadvantage or underrepresentation exists.

Newcastle University similarly has a dedicated Equality, Diversity and Inclusion operation, while Northumbria University collects equality information during recruitment and publishes workforce data.

Northumbria's Race Equality Action Plan provides a particularly relevant example. It identifies academic and professional service departments with targets to increase ethnic diversity and says positive action can be considered before recruitment where underrepresentation exists.

The university nevertheless states that its objective is to attract a diverse applicant pool while ensuring the best candidates are appointed.

Are diversity targets the same as quotas.

This distinction is frequently misunderstood.

An employer can set an aspiration or target to improve representation. A target might prompt an organisation to examine why certain groups rarely apply, investigate barriers or increase outreach.

That does not guarantee anyone a job.

A quota requiring jobs to be awarded to a particular protected group regardless of candidates' individual merit is fundamentally different and can constitute unlawful discrimination.

Government guidance specifically identifies recruitment or promotion quotas operating irrespective of merit as an example likely to be unlawful.

Could someone challenge a recruitment decision.

Yes.

An unsuccessful applicant who believes they were unlawfully discriminated against because of a protected characteristic could potentially bring a claim before an employment tribunal.

Calling a policy "positive action" does not automatically make it lawful.

An employer considering positive action should have evidence supporting the need for intervention, assess whether its approach is proportionate and continue reviewing whether the measures remain necessary.

Recruitment decisions should also be based on objective criteria capable of demonstrating why candidates were considered equally suitable.

Where does UK law draw the line.

The simplest distinction is that positive action attempts to widen opportunity while retaining safeguards around individual merit.

Positive discrimination crosses the line when someone receives unlawful preferential treatment simply because of a protected characteristic.

A Newcastle employer can potentially encourage more applications from an underrepresented community, provide targeted development opportunities and, in narrowly defined circumstances, use an underrepresented characteristic when choosing between genuinely equal candidates.

It cannot simply decide that a job must go to someone of a particular race or sex regardless of who is best suited to the position.

As Newcastle becomes more diverse and its biggest employers put greater emphasis on representation, that distinction is likely to become increasingly important.

Share your thoughts.

Should employers consider diversity when choosing between equal candidates?