Positive action, the tie-breaker rule and AI recruitment tools in Great Britain

Employers who want a more diverse workforce sometimes ask whether they can set their recruitment software to target or favour under-represented groups. In Great Britain the Equality Act 2010 allows positive action in two forms: general measures under section 158, and a narrow tie-breaker in recruitment and promotion under section 159. This page explains both and what they mean for automated outreach and ranking.

The short answer: an employer may take proportionate steps to encourage or help people who share a protected characteristic, such as targeted advertising or training, where it reasonably thinks they are disadvantaged, have different needs or are under-represented (s158). Actually preferring one candidate over another because of a protected characteristic is allowed only where the candidates are as qualified as each other, the employer has no policy of preferring that group, and the step is proportionate (s159(4)).

General positive action: section 158

Section 158 applies if a person reasonably thinks that people who share a protected characteristic (s158(1)):

• suffer a disadvantage connected to the characteristic;
• have needs that are different from those of people who do not share it; or
• have disproportionately low participation in an activity.

The Act then does not prohibit action which is a proportionate means of achieving the aim of enabling or encouraging those people to overcome or minimise the disadvantage, meeting those needs, or enabling or encouraging them to participate (s158(2)). Section 158 does not cover the more favourable treatment in recruitment or promotion that section 159 deals with (s158(4)), and it does not allow anything prohibited under other legislation (s158(6)).

For AI tools, examples that can fall within section 158 include targeting job adverts or outreach at an under-represented group, or offering a group training or mentoring, as long as the employer reasonably thinks one of the three conditions applies and the step is proportionate.

The tie-breaker: section 159

Section 159 applies if a person reasonably thinks that people who share a protected characteristic suffer a related disadvantage, or that their participation in an activity is disproportionately low (s159(1)). Part 5 of the Act (work) then does not prohibit treating candidate A more favourably than candidate B in connection with recruitment or promotion because A has the characteristic and B does not, with the aim of helping that group overcome the disadvantage or participate (s159(2) and (3)). But this applies only if (s159(4)):

• A is as qualified as B to be recruited or promoted;
• the employer does not have a policy of treating people who share the characteristic more favourably in recruitment or promotion than people who do not; and
• taking the action is a proportionate means of achieving the aim.

"Recruitment" covers deciding whether to offer employment and also contract work, partnership and LLP positions, offices and employment services (s159(5)).

What this means for AI ranking and screening

• Weighting a score: adding points to a candidate's ranking because of a protected characteristic is treating them more favourably in connection with recruitment. Section 159 permits this only between candidates who are as qualified as each other, so a weighting that lets a less qualified candidate rank above a more qualified one falls outside it.
• Standing rules: section 159(4)(b) excludes cases where the employer has a policy of treating the group more favourably. A preference set once in a tool and applied to every vacancy should be checked against that condition.
• Outreach and advertising: targeting who sees an advert or receives an invitation to apply is the kind of encouragement section 158 is aimed at, rather than a selection decision.
• Evidence: both sections depend on what the employer reasonably thinks. Workforce or applicant data showing low participation or a disadvantage helps support that, and should be recorded before the step is taken.

Positive action is separate from the occupational requirement exception, which lets an employer require a characteristic for a job (see occupational requirements). For discrimination rules generally see the Equality Act and AI at work, and for hiring tools AI in hiring.

This page covers Great Britain and is general information on the law as at 2 November 2026, not legal advice.