Introduction
The ongoing threatened legal challenge brought by Sophie Corcoran, a writer and journalist against the Bar Council and the 10,000 Interns Foundation could mark a notable moment for UK diversity initiatives.
In this article, I am simply exploring the issue by reference to what the current law states, rather than looking at the political or policy merits of positive action in general.
By positive action, I am specifically referring to the provisions in s158 and s159, not to other exceptions like occupational requirements or disability related reasonable adjustments which fall under different sections. There is hardly any caselaw on these provisions, so practitioners are lacking much judicial guidance.
Background
Corcoran, who is currently crowdfunding her litigation, alleges racial discrimination after being excluded from a legal internship restricted to Black candidates, which save for the restriction, for which she actively wished and indicates she was otherwise eligible to apply.
On her Crowd Justice page, she argues that “no person in Britain should be denied opportunities because of the colour of their skin,” asserting that “if institutions are permitted to allocate opportunities on the basis of race, it risks normalising a system in which individuals are judged not by their character, merit, or ability, but by their ethnicity.” Her claim essentially challenges the lawfulness of this scheme, suggesting that even well-intentioned programmes can cross the line into unlawful direct discrimination if they act as a total bar to other racial groups.
In response, the Bar Council and the 10,000 Interns Foundation have vowed to “vigorously contest” the claim. The Bar Council stated in September 2025 “The scheme, which has been running since 2022 at the Bar, is lawful positive action under sections 158 and 159 of the Equality Act based on evidence of under-representation in relation to access to the profession. It is one of many schemes across the Bar to provide mentoring, work experience and other support to aspiring barristers from under-represented groups.”
Supporters of the scheme, such as Timi Okuwa of the Black Equity Organisation, argue that “treating everyone the same in an unequal system does not create fairness – it entrenches it.”
What is the 10,000 Black Interns’ programme?
The Bar Council website states the programme “offers Black university students and graduates a unique opportunity to gain hands-on experience at the Bar. Over 6 weeks, interns will be hosted by several chambers and organisation [sic], offering a wide-ranging insight into the profession. All internships are paid at the London Living Wage.”
To be eligible you must be: Over 18, Black or of Black heritage (including mixed heritage), and currently studying at a UK university or recently graduated from a UK university within the last 3 years.”
So what is the law?
The starting point with the law is no discrimination against anyone because of a protected characteristic.
However, as I have explained previously, to make the Equality Act workable in situations where “one size fits all” would cause greater discrimination, the Act contains many exceptions to the general principle. Two of them relate to s158 positive action and s159 positive action: recruitment and promotion.
158 Positive action: general
(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.
In other words: it permits organisations to take “positive action” measures to help people with a protected characteristic overcome a disadvantage or address low participation in a particular activity. These measures must be a proportionate means of achieving a legitimate aim and cannot result in individuals being selected regardless of their merit.
However and importantly s158(4) (a) make it clear that it cannot be used in recruitment nor promotion situations.
For recruitment and promotion situations the only positive action allowed is limited to that in s159.
s159 Positive action: recruitment and promotion
(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, or
(b)participation in an activity by persons who share a protected characteristic is disproportionately low.
(2)Part 5 (work) does not prohibit P from taking action within subsection (3) with the aim of enabling or encouraging persons who share the protected characteristic to—
(a)overcome or minimise that disadvantage, or
(b)participate in that activity.
(3)That action is treating a person (A) more favourably in connection with recruitment or promotion than another person (B) because A has the protected characteristic but B does not.
(4)But subsection (2) applies only if—
(a)A is as qualified as B to be recruited or promoted,
(b)P does not have a policy of treating persons who share the protected characteristic more favourably in connection with recruitment or promotion than persons who do not share it, and
(c)taking the action in question is a proportionate means of achieving the aim referred to in subsection (2).
(5)“Recruitment” means a process for deciding whether to—
(a)offer employment to a person,
(b)make contract work available to a contract worker,
(c)offer a person a position as a partner in a firm or proposed firm,
(d)offer a person a position as a member of an LLP or proposed LLP,
(e)offer a person a pupillage or tenancy in barristers’ chambers,
(f)take a person as an advocate’s devil or offer a person membership of an advocate’s stable,
(g)offer a person an appointment to a personal office,
(h)offer a person an appointment to a public office, recommend a person for such an appointment or approve a person’s appointment to a public office, or
(i)offer a person a service for finding employment.
(6)This section does not enable P to do anything that is prohibited by or under an enactment other than this Act.
So, it allows an employer, in limited circumstances, to treat a candidate with a protected characteristic more favourably than another candidate if the employer reasonably believes that:
a. disadvantage or underrepresentation exists,
b. the candidates are equally qualified and
c. the step taken is proportionate.
The provision is often described as a tie-break mechanism.
It does not permit quota systems or pre-determined policies of always preferring one group over another.
Relevant Caselaw
There is very little case law on positive action (and none above Employment Tribunal to my knowledge), probably because positive action (as against other exceptions like occupational requirements) is used in employment far less than some critics infer.
Furlong v Chief Constable of Cheshire Police [2019] IRLR 632 involved an Employment Tribunal decision regarding whether the respondent’s practice of positive action during a recruitment process amounted to unlawful direct discrimination under the Equality Act 2010.
The tribunal held that while the force had genuinely intended to implement positive action to increase diversity, it had overstepped the lawful boundaries by effectively operating a quota system and failing to properly assess individual merit or whether the relevant candidates were genuinely as qualified as the Claimant. Consequently, the tribunal concluded that the unsuccessful candidates had been subjected to unlawful direct discrimination as the respondent’s actions went beyond the scope of permissible positive action under section 159 of the Equality Act 2010.
As this is a decision of an Employment Tribunal, it is not binding on other tribunals or courts and serves only as persuasive authority.
In Turner-Robson and others v Chief Constable of Thames Valley Police, an Employment Tribunal ruled that the force engaged in unlawful direct race discrimination by appointing a minority ethnic officer to a Detective Inspector vacancy without a competitive recruitment process under the guise of “positive action.” The tribunal found that the respondent’s failure to conduct an equality impact assessment or perform a balancing exercise rendered the appointment a disproportionate means of achieving its diversity aims, thereby crossing the threshold from lawful positive action under section 159 of the Equality Act 2010 into unlawful positive discrimination.
Again as an Employment Tribunal decision, this case is not binding on other tribunals or courts and carries only persuasive authority.
So what would a court have to decide?
One of the documents an employment lawyer has to draft is a schedule of issues, setting out the issues/questions the court must consider in a particular case. I still find this a useful mental tool for considering the issues.
1. Jurisdictional Issues (is an Employment Tribunal able to hear the case?)
1.1 The “Genuine Seeker” Issue: Did the Claimant have a genuine interest in a legal career and the internship, or was the application made solely to generate a legal claim? The Judge will consider: If the Claimant never intended to take the role, can she claim any “loss of opportunity” or “injury to feelings”?
1.2 Employment Status: Is an internship of this nature “employment” or “work” within the meaning of Section 83 of the Equality Act?
This is an important question for two reasons:
a. If it is not work then the claim likely fails outside the jurisdiction of the Employment Tribunal and Equality Act (though might evidentially come within another section like s55 if can show arrangement employment service provider)
b. If work, then Respondents can only rely on the s159 exception as s158 specifically precludes recruitment
This article cannot set out all the factors which satisfy s83. Essentially it requires the claimant to how the arrangement was under a contract of service, a contract of apprenticeship, or a contract personally to do work. In turn to establish the former or latter we are looking not just at the paperwork but to the situation in reality; so at issues like mutuality of obligation (payment in return for work etc.), personal service and who has control.
1.3 Time Limits: Was the claim presented within three months (less one day) of the act of discrimination or will “just and equitable” extensionof time be granted?
2. Direct Race Discrimination (Section 13, Equality Act 2010)
2.1 Was the Claimant treated less favorably by the Respondents than they treat or would treat others?
The Less Favorable Treatment likely to be relied upon is:
- The rejection of her application for the 10,000 Black Interns program; and/or
- The categorical exclusion of White applicants from the eligibility criteria.
2.2 Was that treatment because of the Claimant’s race (White)?
2.3 The Respondent will rely on Sections 158 (Positive Action) as a defence (they also mention s159 but I cannot see it would be a valid “tie breaker” following Furlong v Cheshire). If the Respondents prove the measures were lawful positive action, the claim for direct discrimination must fail.
3. s158 (General Positive Action)
3.1. Did the Respondents reasonably think that persons with the protected characteristic (Black/Black heritage) suffer a disadvantage or have a disproportionately low level of participation in the legal profession?
To ascertain this
What evidence/data did the Bar Council hold at the time the 2026 scheme was designed? Were the measures (the internship scheme) designed to enable or encourage persons to overcome that disadvantage or participate in that activity?
3.2 The Proportionality Test: Were the measures a proportionate means of achieving the aim?
- The Judge will ask: Could the Bar Council have increased Black representation through less discriminatory means (e.g., targeted outreach without a total ban on White applicants)? Does the “total exclusion” of other races outweigh the social benefit?
4. Section 159 (Positive Action in Recruitment)
4.1 Was the internship program part of a process for “recruitment or promotion”?
4.2 If so, did the Respondents have a policy of treating persons with a protected characteristic more favorably than those without it?
4.3 The “As Qualified” Requirement: Does the scheme only favour candidates who are “as qualified” as the Claimant? (s159(4) (a)
4.4 If the scheme excludes the Claimant before any assessment of merit occurs, does it fail the Section 159(4)(a) requirement?
4.5 Did the Respondents have a policy of favouring persons with the characteristic, as against the Claimant irrespective of merit? (If yes, the defense fails under s159(4)(b)).
Comment
Despite the attempts of the authors of the Equality Act to set out the “s158 vs. s159” divide, several areas of the law remain unsettled in 2026:
- The “Paid Work” issue: have the Respondents, by seeking to pay the interns, and to manage the activities of the interns, no substitutions etc inadvertently created a situation in which the internship is in fact work being recruited to?
- The “Pipeline” Problem: At what point does any s158 training programme (which itself is not work) become a recruitment process? If for example (though not applying in the Bar Council scheme) an employer offers a “guaranteed interview” to participants of a s158 minority-only workshop, is that a proportionate “encouragement” or an unlawful “recruitment advantage”? This remains a gray area that requires careful, case-by-case legal advice
- The Definition of “Proportionality”: Section 158 requires actions to be “proportionate.” The law is currently unclear on how long an employer can maintain an “exclusive” s158 training program before it is deemed an unnecessary barrier to others.
- The “Merit” Threshold: Because Section 158 cannot be used for hiring, everything rests on Section 159’s “as qualified” requirement. However, the law still lacks a statutory definition of “as qualified.” We are left with a vacuum: how much of a “gap” in interview scores can be ignored before a “tie” becomes a “fix”?
Advice For Implementing Positive Action Schemes
- Evidence-Based Foundation: Document clear, current, and objective data (such as workforce or sector-wide statistics) that demonstratesspecific under-representation or disadvantage. Apply critical not wishful thinking
- Identify a Legitimate Aim: Clearly define the objective of the initiative, ensuring it is specifically designed to address identified barriers, needs, or under-representation.
- Apply the Proportionality Test: Ensure that any measure taken is a proportionate means of achieving the stated aim; evaluate whether less restrictive alternatives could achieve the same outcome. This is very important step often missed.
- Maintain Merit-Based Selection: Ensure recruitment and promotion remain meritocratic. Under section 159, positive action (such as a “tie-break”) can only be applied when candidates are of equal merit.
- Avoid Blanket Policies or Quotas: Do not implement automatic preference systems or quotas in any scheme which could be seen as recruitment or a “pipeline to recruitment”. Each individual must be assessed on their own merits to avoid unlawful direct discrimination.
- Ensure Process Transparency: Maintain documented, objective, and transparent assessment criteria for all candidates to protect against allegations of bias.
- Conduct Regular Reviews: Periodically review the effectiveness and necessity of the initiative. If the evidence justifying the measure no longer exists, the action must be discontinued or modified.
- Clarify Contractual Status: When engaging interns or participants, ensure all documentation, payment and communications clearly define their legal status (e.g., volunteer, intern, worker, or employee). Use precise language to avoid inadvertently creating “worker” statusif that relationship is not intended. Avoid inadvertently creating mutuality of obligation etc.
Conclusion
Unlike other commentators, I think more judicial guidance on what is lawful and unlawful use of positive action schemes would be helpful. As with the single sex services exception, support for the Equality Act, as a public good, is not assisted by initiatives which stray outside the statutory provisions. I do not see challenge as a slippery slope to the removal of disability related reasonable adjustments or accommodations for pregnant women.
Rather having someone like Ms. Corcoran relying on the Equality Act itself, demonstrates the universality of protection under the Act.