What is positive action?

Posted: Tuesday December 10 2019

By: Flora Mewies

We instantly think of discrimination as a bad thing, with discrimination and harassment being prohibited in the workplace and resulting in Employment Tribunal claims and negative press. However sometimes “positive action” is confused with “positive discrimination” and the difference between the two may not be fully understood, particularly when it comes to the promotion of one person over another, for example a woman over a man. Arguably, there are times when positive action is lawful and necessary?

Positive action vs discrimination…the balancing act

We instantly think of discrimination as a bad thing, with discrimination and harassment being prohibited in the workplace and resulting in Employment Tribunal claims and negative press. However sometimes “positive action” is confused with “positive discrimination” and the difference between the two may not be fully understood, particularly when it comes to the promotion of one person over another, for example a woman over a man.  Arguably, there are times when positive action is lawful and necessary?

 

What is positive action?

Positive action is defined in section 158 of the Equality Act 2010; if an employer reasonably thinks that any employees who share a protected characteristic suffer a disadvantage, have needs that are different from others without that characteristic, or participation in an activity by employees who share that protected characteristic is disproportionately low, then it can take “proportionate” action to “achieve a legitimate aim”.

 

This can be an aim to:

  1. enable or encourage those with protected characteristics to overcome or minimise that disadvantage;
  2. meet their needs; or
  3. enable or encourage greater participation from those with protected characteristics.

Positive action is not the same as positive discrimination

Positive discrimination is where employees from minority groups are prioritised above others because of their protected characteristic e.g. disability, race, gender.  This is unlawful.  For example, if a man and woman apply for the same job in a majority female team.  If both candidates are equally qualified and suitable for the role but it is given to the man because the team is lacking male employees; this is an example of positive action.  However if the man was not as qualified and suitable for the role as the woman, yet he was still selected, this would be an example of positive discrimination.

A quick recap…what are the protected characteristics?

The Equality Act 2010 is clear that the following characteristics need to be protected against discrimination and harassment:

  • age;
  • disability;
  • gender reassignment;
  • marriage and civil partnership;
  • pregnancy and maternity;
  • race;
  • religion or belief;
  • sex; and
  • sexual orientation.

How is positive action being used within the workplace?

Employers are not obliged to use positive action within the workplace but may choose to do so.  In 2016, a government backed review set FTSE 350 businesses a target of having 33% of all board and senior leadership positions held by women by the end of 2020 and there is an ongoing debate as to whether the practises used by companies in order to seek to achieve this are lawful and fair.

Positive action can be used to meet diversity targets and narrow the gender and ethnicity pay gaps. It can also result in a wider pool of talented and experienced applicants and a greater understanding of foreign markets and customer needs. It can be fairly used to help achieve a target such as this and methods may include:

  • advertising aimed at the minority group;
  • giving specific training to certain minority groups to help them apply for certain roles;
  • mentoring individuals from minority groups to line them up for promotion;
  • providing additional facilities in the workplace to meet the needs of a minority group e.g. breastfeeding facilities, prayer facilities;

Simply recruiting or promoting more women than men, would be positive discrimination.

It is also acceptable to take positive action when recruiting new staff or promoting existing staff. Employers are permitted to treat an applicant more favourably if they have a protected characteristic and satisfy the following conditions:

  1. both candidates are as qualified as each other;
  2. the employer does not have a policy of treating employees who share the protected characteristic more favourably in connection with recruitment or promotion than persons who do not share it; and
  3. taking action is a proportionate means of achieving the aim of enabling and encouraging employees who share a protected characteristic.

How can employers ensure that they don’t cross the line?

Whilst an employer may use positive action as a way of improving diversity and ensuring a greater representation within the workplace, they must be careful not to cross the line into discrimination. An employer’s actions must be appropriate and proportionate in the circumstances; proportionality will depend on the seriousness of the disadvantage, the extremity of need or under-representation and the availability of other means of countering them.

At a very basic level, it is recommended that the employer should:

  • identify the problem they are faced with and what they want to achieve (the aim);
  • recognise positive and negative impacts of possible solutions to achieve the aim;
  • think about whether there is an alternative way of achieving the aim which is less likely to result in less favourable treatment of other employees; and
  • document their thought process and reasoning.

It is also important for staff and managers to receive training on positive action and how this works in, for example, an interview when managing potential bias.

What do I do if I think my employer is using positive discrimination?

All employees have the right to raise a grievance if they believe they are being treated unfairly.  Before raising a grievance, it is worthwhile discussing your concerns informally.  It may be that what you perceive to be discriminatory is positive action and that this can be justified.  If an explanation given is not forthcoming or is unsatisfactory, the formal grievance procedure should be followed and during this, you should provide clear examples of the treatment you believe is unfair and the reasons why.

How can Ward Hadaway help?

Ward Hadaway can assist with any queries on positive action, grievances and discrimination through our HR Protect package. This gives you access to precedent documents, template policies and unlimited HR and employment law advice for a fixed monthly fee. You can get in touch with us here and a member of our team will contact you within 24 hours to discuss how HR Protect can work for you.