As most people know, discrimination is generally prohibited by the Equality Act 2010. This prohibition includes what is known as “positive discrimination”. However, something known as positive action is allowed, which can often confuse people. It is important for universities to understand the difference between the two.
Positive action enables universities to take specific steps to improve equality for people who share a protected characteristic, without opening the university up to claims of discrimination. It applies where people who share a protected characteristic suffer a disadvantage connected to it, have particular needs or are disproportionately under-represented.
As I said, the similar sounding “positive action” and “positive discrimination” can lead to confusion so it is important to distinguish positive action from positive discrimination.
Positive discrimination, involves preferential treatment aimed at benefiting members of a particular protected group. As a general rule, the Equality Act does not permit universities to treat people in certain disadvantaged groups more favourably than others or put them at an advantage compared to others. As a result, positive discrimination is unlawful. (The exception to this is in relation to disability. Employers are permitted to treat a disabled person more favourably compared to a non-disabled person.)
For example, it would be unlawful to decide to enrol Black students only – or a fixed proportion of Black students - to the exclusion of non-Black students. The aim may be to address inequality by increasing overall representation of Black students on a particular programme, but when these actions do not meet the statutory requirements for positive action, they will be unlawful.
Positive action falls into specific exceptions within the Equality Act 2010. There are two positive action provisions: the “general” rule and “recruitment and promotion”. Since it’s the more common of the two and I am not just focusing on employment here, in this article I’m just going to focus on the general provisions.
The general positive action rule can apply where an organisation reasonably thinks, based on some credible evidence, that people who share a protected characteristic: sex, race, disability, sexual orientation, religious belief and age.
experience a disadvantage,
have different needs, or
disproportionately low participation in an activity as a result.
So, for example, if a university does not have many under graduate applications from ethnic minorities or finds that female employees tend to get stuck at particular promotion points, the university can take proportionate action to achieve the stated aim of overcoming or minimising the disadvantage, meeting the different needs or encouraging participation.
To meet these general positive action requirements:
There must be some indication or evidence that one or more of the relevant circumstances has arisen. This doesn’t have to be sophisticated and it doesn’t have to involve a huge amount of work – it can simply be looking at workforce data or establishing the facts in consultation with workers. This could be shown by very low numbers of students from a particular religion or ethnic groups or a gender imbalance among senior leaders.
It must be proportionate – so universities must look at any relevant competing factors and consider if action is appropriate and likely to achieve the stated aim.
In addition to the option to consider positive action, universities also have to consider the Public Sector Equality Duty: Public authorities must have “due regard” to the need to eliminate unlawful discrimination, to advance equality of opportunity and foster good relations between people who have protected characteristics and those who do not. Actions specifically taken to eradicate discriminatory policies or practices are normally lawful and are separate to the positive action exception. Efforts to eliminate unlawful discrimination could include steps to improve awareness of and access to education, adjusting education benefits, facilities or services to meet the particular needs of a protected group, or training staff to recognise such needs. Actions to eliminate unlawful discrimination are not considered to be “positive action” within the meaning of the Act as they do not rely on the positive action exception. This means that it is not necessary for action to meet the statutory conditions for positive action measures. Nevertheless, it does not extend to positive discrimination – ie giving places to applicants based on their race or promoting people based on their gender – even if this is intended to improve diversity.
The general positive action provisions give universities significant scope to introduce measures to support and encourage employees with protected characteristics. Provided the proposed action is a proportionate way of achieving the aim of overcoming the evidenced inequality, the university is free to decide what specific steps it takes. Here are some example steps:
Action to remedy the disadvantage might include:
- Advertising in media outlets which are likely to be accessed by the target group.
- Stating that applications from the target group are welcome, eg “older people are welcome to apply”.
- Providing opportunities exclusively to the target group like (for students and employees) open days or (for employees) work placements.
Action to meet the different needs might include:
- Providing exclusive training to the target group like English language classes for staff with English as a second language – so they feel confident in their promotion interview and their technical skills are not hindered by lack of confidence in their language.
- Providing support and mentoring, for example, to staff on return from maternity leave.
- Creating an organisation-based support group for members of staff or students who share a protected characteristic who may have different experiences or needs.
Action to encourage participation among the target group might include:
- Setting targets for participation – this is not quotas – is just demonstrating commitment.
- Providing bursaries to aid the acquisition of qualifications.
- Doing outreach work to raise awareness of public appointments within the community.
- Reserving places on training courses, targeted networking opportunities or provision of mentoring.
All of this is creating a positive environment within your organisation to ensure that people apply in the first place, go for promotions or feel free to raise concerns about the student experience or the workforce – it is all about creating the right circumstances for that diversity of thought. Is not about having quotas or saying “let’s recruit five women to balance things out in this team”; that is unlawful discrimination.
For universities who have credible evidence of disadvantage, different needs or disproportionately low participation, taking positive action can be a meaningful way to increase diversity. Benefits that positive action might bring include a wider pool of talented, skilled and experienced people from which to recruit, a diverse and dynamic workforce or student body able to respond to changes, and a better understanding of the needs of a more diverse range of people.
Positive action is entirely voluntary; there is no requirement for universities to take it. However, the Equality and Human Rights Commission in its Statutory Code of Practice on the Equality Act encourages it as a matter of good practice.
In our view, correctly implemented, positive action in student recruitment and student admissions can result in positive benefits, including increased take up of courses, decreased drop-out rates, raised standards and a more diverse student body whose engagement and collective wealth of experience contributes to the growth and reputation of the provider on both an academic and a wider level.
There is some specific guidance for universities in the EHRC’s Higher Education technical guidance – see here.
The EHRC’s Employment Code of Practice is also useful and it provides guidance on implementing positive action lawfully. This includes:
- Collating evidence of the disadvantage, particular need and / or disproportionately low levels of participation (eg through monitoring data).
- Analysing data to determine causes and decide on appropriate action.
- Preparing an action plan setting out proposed actions and planned outcomes.
- Preparing an assessment of proportionality.
- Identifying if any consultation is required (eg with staff / members of protected group).
- Identifying measurable indicators of progress.
- Setting out timeframe and review periods.
If you require further information about anything covered in this briefing, please contact Kathleen Heycock or your usual contact at the firm on +44 (0)20 3375 7000.
This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.
© Farrer & Co LLP, August 2022