Positive Action Guidance

Positive action is a range of measures under The Equality Act 2010 aimed at ending discriminatory practices and outcomes affecting the following protected characteristics:

  • Age
  • Disability
  • Gender reassignment
  • Marriage and civil partnership
  • Pregnancy and maternity
  • Race
  • Religion and belief
  • Sex
  • Sexual orientation

Intersectionality within protected characteristics

Intersectionality is the combination of two or more protected characteristics

For example: A Muslim woman who is also a lesbian with a disability or, an older black man, with a disability

Intersectionality means recognising that people’s identities and social positions are shaped by several factors, which create unique experiences and perspectives. These factors include, among others: age, disability, gender, gender identity, religion and belief, sexual orientation and socioeconomic background. Individuals can experience discrimination based on a combination of elements of their identity.

[Intersectionality] can be used in reference to the identity and/or experiences of a person who has more than one protected characteristic (E.g.: a black lesbian who uses a wheelchair). It can be used in reference to how protected characteristics, and the distinct forms of discrimination associated with them, can intersect and interact (E.g.: when racism and transphobia are both directed towards the same person).

You might find this guide to intersectionality (PDF) from the UCU a useful reference.

Positive Action addressing intersectionality鈥�

Examples might include:

  • Intervention to increase participation of female students with disabilities in the next field trip, by 10 students. The University could achieve this by arranging to hire an accessible bus, visit only accessible places during the trip. Also, to make it clear when advertising the trip.鈥��

  • A positive action intervention to increase the number of black women academics in the 35-44 age group returning to a full-time professional activity within one year after a maternity leave, by 15 %. This could be achieved by helping women with childcare and extending the hours of operation of the university’s nursery.

Positive Action vs Positive Discrimination

The concepts of Positive Action and positive discrimination exist under the Equality Act 2010. Chapter 2 of the Act sets out the prohibition on discrimination. Section 158 permits for positive action to be taken, as set out below.

Discrimination is treating someone less favourably because of a protected characteristic (as defined in the Act). Colleagues will have covered these concepts in their Equality and Diversity training as part of their induction to the University.

Positive Discrimination is the inverse whereby someone is treated more favourably than others because of the individual’s protected characteristic. Discrimination and Positive Discrimination are both potentially unlawful under the Equality Act (with the exception of making reasonable adjustments for those with disabilities).

Is discrimination ever lawful?

There are some very specific circumstances in which (a court will determine) it is lawful to discriminate but only if it can be shown that it is a proportionate means of achieving a legitimate. The Legitimate Aim must be genuine and should not itself be discriminatory.

Some examples of proportionate, legitimate aims in relation to these specific circumstances:

  • The health, safety, and welfare of individuals
  • Running an efficient, competent service
  • Essential requirements of a business

Positive Action

Positive Action can be defined as a permitted, specific action by a person to assist particular groups that are experiencing a disadvantage, have specific needs or are under-represented in a particular activity.

It is a limited exception to the prohibition on discrimination. ‘Disadvantage’ in this context does not have a specific definition, so can be interpreted broadly. Taking Positive Action, of itself, is optional.

Positive Action that complies with the Act can make something that would otherwise be unlawful positive discrimination, a lawful measure.

University鈥檚 Risk Appetite

There is organisational awareness that bias exists in some of our institutional processes which means the outcomes and lived experiences of individuals from specific groups are not equitable. Where this is thought to be the case, there is a higher risk that in not taking positive action we may see discriminatory outcomes.

On this basis, those using this tool are asked to seek opportunities to undertake positive action wherever possible and particularly where data or other evidence suggests our processes lead to inequitable outcomes.

Legitimate Aim

To undertake Positive Action, a Legitimate Aim is required. A Legitimate Aim is the reason behind the Positive Action. This reason must not be discriminatory in itself and it must be a genuine reason.

Further reading and examples of positive action

Positive Action in Higher Education: Students and Research鈥�

The Equality and Human Rights Commission has published extensive technical guidance for the FE, and HE sectors on the Equality Act.

Chapter 13 discusses positive action in more detail, stating that HE providers are enabled to “take proportionate action to achieve fuller and more effective equality outcomes for members of groups that share a protected characteristic that are socially or economically disadvantaged or excluded, or who otherwise face the consequences of past or present discrimination or disadvantage.”鈥�

Chapter 13 provides several useful examples, which colleagues may like to consider. To avoid duplication, they have not been reproduced here. The interests of an employer are likely to be different to that of an education provider, but the fundamentals around taking positive action are the same: a specific action to assist particular groups that are experiencing a disadvantage, have specific needs or are under- represented in a particular activity.

The most obvious example would be seeking to increase participation in particular subject areas from particular groups – e.g., men undertaking a primary PGCE.

Examples of Positive Action

Remember, Positive Action is to be targeted towards a particular issue or issues (the legitimate aim) and is time limited:鈥�

  • Providing targeted support and mentoring to students or workers鈥�
  • Reserving places on certain training courses for people with the relevant protected characteristic鈥�
  • Setting targets (but not quotas) for increasing participation from certain groups鈥�
  • Targeting advertising at certain groups and specifically encouraging certain groups to apply for roles or courses (including advertising in different languages shared by the targeted group)鈥�
  • Providing work experience and learning opportunities only for members of certain groups鈥�
  • Providing targeted bursaries to encourage participation in certain activities鈥�
  • Targeted networking opportunities in particular industries鈥�