Positive Action Guidance

Here you can find out what positive action is and how it can be used

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 (age, disability, sex, race & ethnicity, religion or belief, sexual orientation and gender reassignment) could face.  Further information can be found on the Equality and Human Rights Commission (EHRC) website.

The positive action provisions of the Equality Act (2010- S.158) apply to the University both as an employer and as an education provider.

Two forms of positive action are permitted under the Equality Act 2010:

  • General positive action, which might include reserving places for a protected group on training courses or providing mentoring for a particular group to increase their representation at senior levels.
  • Positive action that specifically relates to recruitment and promotion, also known as the ‘tie-break provision’. Here an employer can take an individual’s protected characteristic into account in recruitment or promotion

Positive discrimination is unlawful in the UK, but positive action is not. What this means is that an employer can use positive action to prioritise the hiring of candidates from under-represented groups as long as they are as qualified for the role as other applicants

An employer must demonstrate a need to make use of positive action. In order to demonstrate this need the employer must have at least twelve months’ worth of data indicating that particular groups of people are under-represented in a particular area of work. The purpose of, and the need for, the initiative must be clearly communicated.

For example: ‘analysis of the university staff and recruitment data, which was used for our race equality charter mark submission, showed that Black, Asian and minority (Global Majority) staff were underrepresented in a number of schools and directorates within the university in senior roles. Similar analysis demonstrates underrepresentation of men and women within different areas of the university, and a general underrepresentation of disabled people across the university. So positive action is just one of the steps that we can take to address this underrepresentation.

Before managers use positive action interventions within the recruitment process, they need to familiarise themselves with the university’s workforce planning guidance. So that they know when to use positive action, by looking at the current makeup of their team and identify the needs of the role. If replacing a member of staff, you must not only think of finding someone who is most like the previous person, but also think of what the role requires now and what the role will require in the future, aligned with the University's Strategic Aims.

Positive action can be used to encourage particular groups to apply, or to help people with particular protected characteristics to perform to the best of their ability.

For example we have the following positive action statement in University adverts:

"The University of Wolverhampton is committed to being an inclusive employer, with a diverse workforce.  We encourage applications from people from the widest possible diversity of backgrounds, cultures and experiences.  We particularly welcome applications from candidates who self-define as Disabled and applications from Black, Asian, and Minority Ethnic candidates, as they are under-represented within the University.’’

Departments may wish to amend this positive action statement to include reference to protected characteristic that are underrepresented within their team based on evidence via staff data. In line with the university’s work on gender equality, particular consideration should be given to welcoming applications from men or women, if they are underrepresented within the team or at that level of seniority. When addressing female staff under-representation, Intersectionality also needs to be considered in terms of under-representation of global majority female staff.

Further examples of positive action may include:

  • Targeted advertising of jobs. This can be using specific, but not exclusive, media or networks to advertise jobs.
  • A proactive search strategy to ensure a diverse shortlist.
  • Offering pre-application and promotion training where this meets a need. For example, leadership and management training skills
  • Offering mentoring schemes.

If Managers intend to use positive action in recruitment or any other activity, they must contact HR and the EDI team for further advice and guidance.

Underrepresentation of Staff

A large public sector employer monitors the composition of their workforce and identifies that there are large numbers of visible ethnic minority staff in junior grades and low numbers in management grades. In line with their equality policy, the employer considers the following action to address the low numbers of ethnic minority staff in senior grades:

  • Discussing with representatives of the trade union and the Black staff support group how the employer can improve opportunities for progression for the under-represented group.
  • Devising a positive action programme for addressing under-representation of the target group, which is shared with all staff.
  • Including within the programme shadowing and mentoring sessions with members of management for interested members of the target group. The programme also encourages the target group to take advantage of training opportunities such as training in management, which would improve their chances for promotion."

Equal Tie Break

Example 1 Disability:

An employer is faced with having to choose between three candidates of equal merit (same scores) for a post. One candidate has mobility impairment, another has a learning disability and the third has no form of disability. To address the under-representation of people with learning disabilities within the organisation and in the local area, the employer selects the candidate with the learning disability. This would not be unlawful discrimination against either of the other candidates.

Example 2 Race:

An accountancy firm is recruiting for its graduate training scheme. After the first round of assessment the firm decides to shortlist 20 candidates. There is a tie-breaker situation for the 20th place on the shortlist as there are a number of candidates of equal merit (same score). The firm decides to use the positive action provisions to advance a candidate from a global majority background to the next round of recruitment, because people from global majority backgrounds are under-represented in the firm. This would mean that the non-global majority candidates could not claim unlawful race discrimination for not being put on the shortlist.

Example 3 Sex:

A health and fitness club is faced with making a choice between two applicants for a job as the manager of a leisure facility. One, a woman, has recently completed a Leisure Management Foundation Degree course but has little practical experience. The other candidate is a man who has no formal qualifications but has several years’ experience of working in leisure centres. Having interviewed both candidates, the employer decides that both could do the job to the same standard but in different ways as each would bring a different set of skills and experiences to the job.

Therefore, because the candidates are of equal merit the manager could voluntarily use the positive action provisions when choosing between the candidates and opt to employ the women because all of the other senior positions at the leisure complex were held by men.