The ability to take positive action is only available where the employer reasonably believes members of ethnic minorities are at a disadvantage or are under-represented: /7

THERE IS NO DUTY to take positive action. Instead the Act carves out a narrow exception from the general rule that appointments must not be influenced by the candidates’ race. In such exceptional circumstances positive action is permitted but not required. /8

Critically, you cannot use positive action to appoint a less-qualified candidate. It’s only available at all where the candidates are EQUALLY QUALIFIED. You can’t use it to pass over a better qualified candidate. /9

You can’t have a POLICY of preferring minority ethnic candidates and even if you jump through those hoops you’d still have to show it was a proportionate means of avoiding the disadvantage or addressing the under-representation. /10

That means that if alternative measure falling short of favouring the minority ethnic candidate were available, the positive action would not be lawful. /11