Using positive action to target training or promote a wider range of people

In this section we look at the following issues:

  • What is ‘positive action’?
  • Do I have to take positive action?
  • When can I use positive action?
  • Explaining why you are using positive action
  • Treating disabled people better than non-disabled people
  • The sort of lawful positive action steps you can take in relation to training, development, promotion and transfer
  • When you are allowed to use positive action and what you have to do to show it is needed 
    • What you have to show to be able to use positive action
    • The sort of evidence you can use
    • What ‘disadvantage’ means
    • What ‘different needs’ means
    • What ‘disproportionately low’ means
    • Tie-break situations
    • Exceptions where a particular protected characteristic can be looked at during training, development, promotion or transfer but which are not the same as positive action.

What is ‘positive action’?

‘Positive action’ means the steps that you can take as an employer to encourage people from groups with different needs or with a past track record of disadvantage or low participation to take up training, development, promotion or transfer opportunities.

  • You must have evidence of the different needs, disadvantage or low participation before you can take any of these steps.

When you are considering promoting someone, equality law allows positive action before or at the application stage, when the steps could include encouraging particular groups to apply, or helping people with particular protected characteristics to perform to the best of their ability (for example, by giving them training or support not available to other applicants).

In relation to training and development, equality law allows you to target training at particular groups.

An example of when an employer might decide to take positive action is if they have evidence that the make up of a particular level in their workforce is different from the make up of their local population, so they decide to encourage people who share particular under-represented protected characteristics to undertake training.

Or there is evidence that people with a particular protected characteristic are less likely to have a particular qualification which is relevant to a job or might increase their chances of getting promoted. The employer gives particular attention to training people from that group. 

This is not the same as ‘positive discrimination’ or ‘affirmative action’ which equality law does not allow. 

Do I have to take positive action?

Taking positive action is voluntary. You do not have to take positive action.

However:

  • Meeting the different needs of your workforce can help make your staff more productive.
  • Recruiting from a wider range of people, in terms of their protected characteristics, can help your organisation to understand its customers, clients or service users better.
  • If you are a public authority, positive action may help you meet the public sector equality duty.

When can I use positive action?

The steps you are allowed to take as part of positive action must be proportionate to these aims which means they must:

  • be related to the level of disadvantage that exists
  • not be simply for the purposes of favouring one group of people over another where there is no disadvantage or under-representation in the workforce.

For example:

An education employer could not use positive action to attract male candidates on promotion for a head teacher’s job where men already hold 80 per cent of senior roles, even though women make up 70 per cent of the teaching workforce as a whole. Since the steps would not be being taken to overcome a disadvantage for or under-representation of men this would be unlawful direct discrimination.

You must not have a blanket policy or practice of automatically treating people who share a protected characteristic better than those who do not have it. You must still appoint the best person for the job, even if the best person does not have the particular protected characteristic you are targeting. However, there are special tie-break provisions, .

However, the employer could use positive action to promote more women as they are under-represented at this level, for example, they could offer a training programme targeted at women to encourage them to apply for senior jobs and help make sure they can demonstrate the necessary skills to be the best candidate for a particular position. 

Since the steps would not be being taken to overcome a disadvantage for or under-representation of men this would be unlawful direct discrimination. 

However, the employer could use positive action to promote more women as they are under-represented at this level, for example, they could offer a training programme targeted at women to encourage them to apply for senior jobs and help make sure they can demonstrate the necessary skills to be the best candidate for a particular position. 

You must not have a blanket policy or practice of automatically treating people who share a protected characteristic better than those who do not have it. You must still appoint the best person for the job, even if the best person does not have the particular protected characteristic you are targeting. However, there are special tie-break provisions.

Explaining why you are using positive action

Positive action may make people who do not have the particular protected characteristic feel they have not been given the same chance to apply for a promotion or transfer or to undertake training. It is a good idea for you to explain why you have decided to use positive action. That involves showing different needs or specific disadvantage or under-representation and that you are not doing more than is needed and proportionate to tackle those problems.
 

Treating disabled people better or more favourably than non-disabled people

As well as these exceptions, equality law allows you to treat a disabled person better – or more favourably – than a non-disabled person. This recognises that disabled people face a lot of barriers to participating in work and other activities.

For example:

Each year, an employer allocates a certain amount of money per worker to pay for training. They decide to allocate an additional budget to provide two sessions of management training which is only available to disabled staff. This would not be unlawful discrimination against non-disabled workers.
 

The sort of positive action steps you can taking in relation to training, development, promotion or transfer

Examples of what you might do, which would count as positive action (depending on the protected characteristic you are targeting), include:

  • Encouraging applications to promotions or transfers from under-represented groups, for example through targeted advertising;
  • Offering pre-application training to particular groups where this meets a need, for example, updating people’s skills ahead of the promotion process;
  • Offering work shadowing or mentoring opportunities to people from a particular group to encourage individuals from this group to apply for the promotion, because they will then know what’s involved;
  • Making it clear that more senior roles can be done flexibly or as a jobshare;
  • Offering funding to enable people to obtain qualifications;
  • Making it clear that childcare facilities or vouchers are available.
  • Remember you will need to consider if such measures are needed and are proportionate. You should regularly review what you are doing to make sure positive action is still appropriate.
     

More about when you are allowed to use positive action and what you have to do to show it is needed

What you have to show to be able to use positive action

You can use positive action where you reasonably think (in other words, on the basis of some evidence) that:

  • people who share a protected characteristic suffer a disadvantage connected to that characteristic
  • people who share a protected characteristic have needs that are different from the needs of people who do not share it, or
  • participation in an activity by people who share a protected characteristic is disproportionately low.

Sometimes the reasons for taking action will overlap.

For example:

People sharing a protected characteristic may be at a disadvantage and that disadvantage may also give rise to a different need or may be reflected in their low level of participation in particular activities.

To deal with the three situations, you can take action to:

  • enable or encourage people to overcome or minimise disadvantage
  • meet different needs, or
  • enable or encourage participation.

The sort of evidence you can use

You can only decide to use positive action if you reasonably believe that a group of people who share a particular protected characteristic is under-represented or disadvantaged or has different needs.

You will need to have some evidence to show that your belief is reasonable, but it does not need to be sophisticated statistical data or research.

For example:

You could look at the profile of your workforce and compare it to several comparable employers in your area or sector. You could also check what each level of your workforce is like, in terms of the protected characteristics workers have.

You could also look at it in relation to the local population where your organisation
is based.

You may be able to use information provided by official statistics (which you can get from your local council or National Statistics) or by an employer organisation if you belong to one or by your recognised trade union if you have one.

It does not have to be information you have gathered for yourself, so you might hear about a research study which is relevant to your sector which you could use.

You can target more than one protected characteristic at a time, provided that for each characteristic you have evidence of disadvantage, different need or low participation.

What ‘disadvantage’ means

The law does not define ‘disadvantage’ but it may include exclusion, rejection, lack of opportunity, lack of choice and barriers to accessing employment opportunities. It is generally understood to relate to barriers or obstacles which make it difficult for a person to enter into, or make progress in, a trade, sector or workplace.

For example:

A requirement to work full-time may act as a barrier for women to apply for a more senior job because they need flexible working so that they can combine paid work with family responsibilities. An employer may therefore adopt flexible working policies for jobs where these have not usually been offered to encourage more women to apply for such senior jobs.

What ‘different needs’ means

Certain groups with protected characteristics may have needs which differ from those persons who do not have the protected characteristic. A need is something required because it is essential or important, rather than merely desirable to those with a particular characteristic. A need does not have to be unique to those with that particular characteristic, but it must be something that the employer reasonably believes relates to the characteristic.

For example:

Workers over 50 are less likely to have acquired computer skills during their school education. If a transfer opportunity required advanced computer skills, it would be legitimate for an employer to particularly encourage any workers over 50 who need it to do specific training to put them in as good a position to apply for the transfer as their younger counterparts whose education provided the necessary skills.

What ‘disproportionately low’ means

Low participation may or may not be disproportionate. For you to use positive action to overcome it, participation must be low compared with other groups or compared with the level of participation that could reasonably be expected. This might be evidenced by means of statistics, or, where these are not available, by qualitative evidence based on monitoring or consultation.

For example:

An employer with a factory in an area with a high population of Polish origin has 10 section managers but only one section manager of Polish origin. They will be able to show low participation of Polish workers in supervisory positions by looking at their workforce profile at this level in comparison to the size of the Polish population in the area, as well as in comparison to the presence of Polish workers at lower levels in the same factory. But if the factory were located in another part of the country where the Polish population is significantly smaller, the presence of Polish managers in the factory may not be low when compared to the Polish population of that area. 

Good practice tip for finding out about your workforce

It won’t always be obvious that people in a workforce have a particular characteristic, so the best way for you to gather evidence is through monitoring.

 

Tie-break situations

The other positive action step you can take is to decide to promote a worker from a group sharing a protected characteristic if you reasonably believe this group to be disadvantaged or under-represented in the workforce or if their participation in an activity is disproportionately low. You should be able to show there is some information or evidence to support your belief, but it does not need to be sophisticated data or research, You could just review the profile of your own workforce or the sector as a whole. National labour force surveys may be a useful resource.

You can only use these ‘tie-break’ provisions when faced with a choice between two candidates who are as qualified as each other. It is also possible, though it would be unusual, that a tie-break situation could arise where more than two candidates were equally qualified for the post.

Although it is most likely that you would use the tie-break provisions at the end of the promotion process, you can also treat an applicant more favourably at any earlier stage of the process, eg shortlisting. But remember you can only use these provisions if it is a proportionate way of enabling or encouraging people from the disadvantaged or under-represented group to overcome or minimise the disadvantage of that group.

For example:

A large company has no African Caribbean staff at manager level, even though it has many African Caribbean employees at more junior levels. When a vacancy at manager level arises, there are two candidates of equal merit. One candidate is African Caribbean and the other is not. The company could choose to offer the promotion to the African Caribbean candidate under the positive action provisions, so that the non African-Caribbean candidate could not claim race discrimination.

The phrase ‘as qualified as’ is not defined by the law, but you should give it a broad meaning. You should do a full and objective assessment of each applicant’s suitability, skills, qualifications (professional and academic), competence and professional performance, matched against a set of objective criteria for the job.

You must not have a general policy of treating people with the relevant protected characteristic more favourably in connection with promotion.
 

Exceptions

Exceptions where a particular protected characteristic can be looked at during training, development, promotion or transfer but which are not the same as positive action

There are a few exceptions where employers can target applicants with a particular protected characteristic without this being unlawful discrimination. These are not the same as positive action.

For example:

If an ‘occupational requirement’ exists for the job:

An organisation exists to advance the interests of fathers. It may be possible for them to specify that their chief executive should be a father, since this post has a significant representative role. The applicant’s sex would be what is called an ‘occupational requirement’ for the job and this would apply to internal as well as external candidates.

The difference between an occupational requirement and positive action is that:

  • An employer using an occupational requirement says that only people with a particular protected characteristic can do the job.
  • An employer who wants to use positive action says that anyone who has the right skills, knowledge and experience is able do the job, but they want to look especially hard for someone with a particular protected characteristic.

 

More information

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