Paul Deemer, head of diversity and inclusion at NHS Employers and Alexandra Ankrah, head of the Disability Health Learner Transition Programme (Health Education England/NHS England legacy), share insights on the Equality Act 2010 and how this enables organisations to take positive action to support their disabled health learners.
The term ‘positive action’ has somehow received bad press in the UK. Positive action is about taking a lawful approach to dealing with disadvantage or inequality experienced by some groups of people identified in the Equality Act 2010. You would assume that here in the NHS we would want to explore all routes to adopting positive action, especially where there is evidence it could make a difference and even drive up patient outcomes and safety.
The reality is that many of our colleagues working in the NHS still view positive action with suspicion and that's the challenge.
If you are an employer in the health sector, here in England, you can choose to use the positive action measures in the Equality Act 2010 to help people overcome barriers. Positive action can play a role in improving both recruitment and retention across the health and social care workforce.
In the case of disability, it is lawful for an employer to treat a disabled person more favourably than a non-disabled person without needing to rely on positive action. This is because the way the Equality Act 2010 was drafted means that provisions around disability are different from the other protected characteristic groups, including race or sex. Public sector employers like the NHS are actively encouraged to use the positive action provisions to overcome or minimise any disadvantage connected to a person’s disability.
Positive action can also be used to increase the participation of people who are disabled. This is because when it comes to disability, the Equality Act 2010 and Public Sector Equality Duty protect the rights of disabled people. When a disabled person is treated more favourably, a non-disabled person cannot use the Equality Act to say they have been treated less favourably as a result. The law in the Equality Act does not treat every protected characteristic the same, because equality does not happen when we do the same things for everyone.
Equality happens when we do things differently and that can mean being proactive and using positive action measures to enable disabled people join and remain in the NHS workforce and give their best.
Positive action can be a significant part of those crucial steps to tackle inequality, historic discrimination and be a driver of the change that we all agree is overdue. Harnessing positive action is daunting because, action needs both preparation and planning. We must first recognise and acknowledge that things are wrong; we also need to take an evidence-based approach. Additionally, the ‘we’ means there is a need to work in collaboration; being proactive also means engaging with staff and others who might be directly affected: "Nothing about us, without us" is a great approach.
Positive action and the law
A new Capsticks briefing Supporting disabled health learners from education to work aims at dispelling myths around positive action, but also highlights the steps the NHS and employers can take under the Equality Act 2010 to support transition into the regulated NHS workforce. The guidance includes scenarios and examples of case law. This briefing also crucially shares cases where things have gone wrong, even though people may have thought they had the best of intentions.
We want employers to be clear that positive action and the use of reasonable adjustments is something they should be proactively looking to use and can do so lawfully to build a workforce that reflects all our communities.
Making workplace adjustments
Most workplace adjustments cost less than £100, whilst many cost nothing at all and simply require a change to a process or a policy. Examples include changes to the physical environment, such as installing ramps, providing equipment such as ergonomic desks, assistive technology software or allowing flexible working hours. Visit the NHS Employers webpage making effective workplace adjustments to support staff in their roles to learn more.
Using a digital passport to record adjustment needs
Using a digital passport such as the Empowerment Passport to record and share adjustment requirements can also be beneficial. In a recent rapid review of the Empowerment Passport, conducted by the former Health Education England, 67 per cent of disabled participants believed that the passport could make it easier for them to disclose their health conditions or disabilities. All participants valued the portability of the passport, confirming its potential for a seamless transition and utilisation across different organisations. Read the case study to learn more.
Disability History Month 2023 and the Disability Summit challenged us to ‘Lead the change’ - it’s essential we don’t lose momentum. Let’s strive to create inclusive workplaces that not only welcome disabled people, but that also support them through their education into work and to progress their careers within the NHS.