Positive action

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Positive action is defined as voluntary actions employers can take to address any imbalance of opportunity or disadvantage that an individual with a protected characteristic could face. Protected characteristics, as identified in the Equality Act 2010, are race, gender, religion, age, sexuality, disability, marriage/civil partnership status and pregnancy/maternity.

Disadvantage could be evident in many ways, including where:

  • people with a protected characteristic have needs that are different from the needs of people who do not
  • participation in an activity by people with a protected characteristic is disproportionately low.

Positive action vs positive discrimination

There is often confusion around how positive action differs from positive discrimination.

Unlike positive action, positive discrimination is illegal. Discrimination occurs when a candidate is given preferential treatment because of a protected characteristic, or is employed specifically because of a protected characteristic, rather than because they are the most qualified or equally qualified for a role.

Employers should also be aware that setting a quota to recruit a specific number of people from a protected characteristic group is also positive discrimination, and is not permitted.

Under Equality Act 2010, employers can take positive action to support those from under-represented groups, to help them overcome any disadvantage when competing with other applicants or applying for development and training. You can read more about the content of the Equality Act 2010 on the government website.

Occupational requirement

There are certain instances when an employer can specify particular characteristics for a role, if the role needs to be done by a person with that particular characteristic. For example, it would be legal and appropriate to specify that only women can apply for a role in a women’s refuge. This type of occupational requirement is permitted only if the employer can demonstrate:

  • a robust and demonstratable link between the requirement and the job
  • a good business case or aim for holding the specific requirement
  • holding the requirement is proportionate (i.e. appropriate and necessary).

You can find more information about occupational requirement and read some examples of it on the Citizens Advice website.

Why should employers take positive action?

  • Positive action, at both recruitment and development/promotion stages, will help ensure that you create and maintain a diverse workforce which is representative of your local community.
  • It will enable you to fulfill your legal obligations under the public sector Equality Duty and ensure you embed consideration of equality in your organisation’s day-to-day business.
  • Where staff see their employer taking active steps to support ethical and moral causes they are likely to feel more positive about their employer. Staff are also likely to feel more supported should they be affected by those actions taken by the employer, and this is linked to better performance and ultimately improved patient care.

Implementing positive action

There are many ways that employers can take positive action, some of which may already be happening in your organisation.

  • By becoming a disability confident organisation, you promote a positive and open culture to support staff with a disability in the workplace. You can access more information on becoming disability confident on our web section.
  • Making reasonable adjustments for a disabled staff member or applicant in the workplace or in recruitment activities would be considered positive action under the Equality Act 2010.
  • Implementing a supported internship is another straightforward way you may also be taking positive action already. Supported internships encourage participation in society of those who may be disproportionately excluded from participating in society.
  • In a recruitment scenario where there are two candidates – one who has a protected characteristic, and one who does not - that are deemed to be equally qualified for a specific role, an employer could offer a role to the individual with protected characteristic. This action is called a tie-break scenario, and is allowed under the Equality Act 2010 to help address historic and social disadvantage.
  • Positive action can be taken to support the development and progression of those who are already in employment where it can be reasonably assumed that because of their protected characteristic they may have reduced or missed opportunities to develop and progress. A good example of a positive action programme aimed at those in employment is the NHS Leadership Academy’s Stepping Up programme, which supports the development of aspiring black and minority ethnic (BME) leaders in the NHS.

Creating a positive data sharing culture

Positive action is best implemented where there is clear and accurate data about the number of staff who hold a protected characteristic. Without this, the effectiveness of any positive action intervention will be limited.

There is a need for improved data collection to ensure that the case for any positive action can be justified in terms of proportionality. Additionally, improved sharing of this data will also support your attainment of standards such as the Workforce Race Equality Standard and Workforce Disability Equality Standard.

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