Equality Act 2010, section 158

Positive action: general

Part 11 Advancement of equality

(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,

(b)persons who share a protected characteristic have needs that are different from the needs of persons who do not share it, or

(c)participation in an activity by persons who share a protected characteristic is disproportionately low.

(2)This Act does not prohibit P from taking any action which is a proportionate means of achieving the aim of—

(a)enabling or encouraging persons who share the protected characteristic to overcome or minimise that disadvantage,

(b)meeting those needs, or

(c)enabling or encouraging persons who share the protected characteristic to participate in that activity.

(3)Regulations may specify action, or descriptions of action, to which subsection (2) does not apply.

(4)This section does not apply to—

(a)action within section 159(3), or

(b)anything that is permitted by virtue of section 104.

(5)If section 104(7) is repealed by virtue of section 105, this section will not apply to anything that would have been so permitted but for the repeal.

(6)This section does not enable P to do anything that is prohibited by or under an enactment other than this Act.

Definitions used in section 158 1

enactment

“enactment” means an enactment contained in—

(a)

an Act of Parliament,

(b)

an Act of the Scottish Parliament,

(c)

an Act or Measure of the National Assembly for Wales, or

(d)

subordinate legislation;

Defined in s.212(1) · see it in the full Act

Cases considering section 158 10

For Women Scotland Ltd v The Scottish Ministers

[2025] UKSC 16 · 16 April 2025Interprets

Positive action may address disadvantage, different needs or low participation among persons sharing a protected characteristic. Its coherent operation requires sex to mean biological sex. (see paras [147]; [237]-[244])

R v Hackney London Borough Council and another

[2020] UKSC 40 · 16 October 2020Interprets

Permits proportionate positive action addressing disadvantage or different needs connected with a protected characteristic. The housing policy satisfied this defence because its group-based benefits outweighed its small effect on excluded groups (see paras [66]; [73]-[88]; [117]). Requires positive action to be a proportionate means of achieving the specified aims. Conventional four-stage proportionality analysis applies, and the permissible aims may include improved outcomes for the protected group (see paras [65]-[66]; [72]-[80]).

Z & Aanor, R (On the Application Of) v London Borough of Hackney & Anor

[2019] EWCA Civ 1099 · 27 June 2019

The subsection was satisfied because the housing association and local authority reasonably considered that Orthodox Jewish applicants experienced characteristic-linked disadvantage and different housing needs (see paras [33]; [80]-[81]; [90]). Preferential housing arrangements were a proportionate means of addressing characteristic-linked needs and disadvantages. Their very small impact on other applicants was outweighed by compelling needs, and a less restrictive allocation would undermine the aim (see paras [79]-[88]; [90]).

What each judgment says about section 158 is in the case-law panel in the full Act.

Explanatory note

511.This section provides that the Act does not prohibit the use of positive action measures to alleviate disadvantage experienced by people who share a protected characteristic, reduce their under-representation in relation to particular activities, and meet their particular needs. It will, for example, allow measures to be targeted to particular groups, including training to enable them to gain employment, or health services to address their needs. Any such measures must be a proportionate way of achieving the relevant aim.

512.The extent to which it is proportionate to take positive action measures which may result in people not having the relevant characteristic being treated less favourably will depend, among other things, on the seriousness of the relevant disadvantage, the extremity of need or under-representation and the availability of other means of countering them. This provision will need to be interpreted in accordance with European law which limits the extent to which the kind of action it permits will be allowed.

513.To provide greater legal certainty about what action is proportionate in particular circumstances, the section contains a power to make regulations setting out action which is not permitted under it.

514.If positive action measures are taken in recruitment or promotion under section 159(3) or the selection of political candidates under section 104, those provisions will apply rather than this section.

515.Should the provision allowing single-sex shortlists for the selection of political candidates (section 104(7)) be repealed, this section will not permit action to be taken similar to that permissible under that provision.

516.This section does not allow any action to be taken that would be prohibited by other legislation.

517.This section is new. There were positive action provisions in previous legislation, but these applied to different protected characteristics in different ways and in some cases were specific about the types of action they permitted. This section extends what is possible to the extent permitted by European law, and applies in relation to all protected characteristics.

All the explanatory notes for the Act

Amendments and notes

1 notes from legislation.gov.uk

Modifications

  1. C18S. 158 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