Many employers now use software to decide who hears about an internal vacancy, who is recommended for a course, who is flagged as having high potential and who is shortlisted for promotion. Talent marketplaces, skills profiles and potential scores can all shape a career long before a manager makes a formal decision. The Equality Act 2010 does not mention these tools, but it covers the decisions they feed into.
The short answer: an employer must not discriminate against an employee in the way it affords them access, or by not affording them access, to opportunities for promotion, transfer or training or for receiving any other benefit, facility or service (Equality Act 2010, s39(2)(b)). The same applies to victimisation (s39(4)(b)), and the duty to make reasonable adjustments applies to employers (s39(5)). Using a tool does not change these duties.
What section 39 covers for existing staff
Section 39(2) says an employer must not discriminate against one of its employees:
- as to the employee's terms of employment (s39(2)(a));
- in the way it affords the employee access, or by not affording access, to opportunities for promotion, transfer or training or for receiving any other benefit, facility or service (s39(2)(b));
- by dismissing the employee (s39(2)(c));
- by subjecting the employee to any other detriment (s39(2)(d)).
Section 39(4) repeats the same list for victimisation, so an employer must not victimise an employee in access to promotion, transfer or training either (s39(4)). See victimisation and AI.
Where AI tools come in
- Who sees an opportunity: the wording covers "the way" access is afforded, not only the final decision. A system that shows internal vacancies or training offers to some staff and not others is part of how access is afforded.
- Potential and readiness scores: a score built from past promotion data can reproduce the patterns in that data. If it puts people who share a protected characteristic at a particular disadvantage, it can be indirect discrimination unless the employer can justify it. See indirect discrimination and AI.
- Inputs that track a protected characteristic: data such as length of career, gaps, hours worked or availability for travel can be linked to age, sex, disability or caring. Using a characteristic itself, or a direct stand-in for it, raises direct discrimination questions. See direct discrimination and AI.
- Time away from work: staff who were on maternity leave, sick leave or part-time hours may have less recent activity for a tool to measure. See pregnancy and maternity and part-time workers.
- Assessments and tests: an automated assessment for a promotion or a course can put a disabled employee at a substantial disadvantage, which is where the adjustment duty comes in. See reasonable adjustments and AI.
- Being left out: not being put forward at all, or being moved to a less visible role on the strength of a score, can also fall under "any other detriment" in section 39(2)(d).
Employers who want to widen access for under-represented groups have specific, limited options under the Act; see positive action and AI.
Practical steps for employers
- Know what the tool decides: list which opportunities it filters, ranks or recommends, and who sees the results.
- Check the inputs: remove protected characteristics and look hard at data that can stand in for them.
- Check the outcomes: compare who is shown, recommended and promoted across groups, and act on gaps you cannot justify.
- Keep a person in the decision: a manager should be able to explain why someone was or was not put forward without pointing only to a score.
- Offer adjustments: tell staff how to ask for a different format or route for any automated assessment.
- Keep records: how the tool was set up and checked can matter if a decision is challenged. See employer liability and the reasonable steps defence.
For employees
- Ask how internal vacancies, training places and promotion shortlists are decided, and whether any tool scores or filters staff.
- If you think you were passed over because of a protected characteristic, keep notes and dates, and note the time limit for a claim. See time limits and proof.
- For your rights around time off for training, see time off to train.
For the wider picture, see UK equality law and AI and AI in performance reviews.
This page covers Great Britain and is general information on the law as at 2 November 2026, not legal advice.
Questions and answers
Does the Equality Act cover AI promotion tools?
Yes. Section 39(2)(b) covers the way an employer affords access to promotion, transfer and training. It applies whatever tool the employer uses.
Is a talent marketplace that hides vacancies from some staff covered?
It can be. The Act covers the way access to opportunities is afforded, not only the final decision, so how a system shows opportunities can matter.
Does the duty to make reasonable adjustments apply to promotion assessments?
Section 39(5) says the duty to make reasonable adjustments applies to an employer. That can include how automated assessments for promotion or training are run.