Positive action

Positive action is a popular way to increase diversity and equality in the workplace, but it sometimes comes under scrutiny. It’s particularly important to ensure that your actions don’t cross over into positive discrimination, as the line can sometimes feel blurred. So, how can you take measures to increase the diversity of your workforce and ensure equality in your workplace, whilst ensuring that you stay on the right side of the law?

In this article, we’ll explain exactly what positive action is and how it can benefit your workforce. We’ll also delve deeper into positive discrimination, as well as discussing how you can ensure that your actions don’t lead to a claim being made at the employment tribunal.

How To Promote A Diverse Workplace

Equality and diversity are two of the most important issues facing businesses today. This leaves many business owners and HR managers alike looking into ways to increase the diversity of their workforce, as well as ensuring equality in business processes.

Positive action is one measure that many companies take to help to increase the diversity within their workforce. This can be used during the hiring process, when making decisions about internal promotions and when redundancies need to be made. But what is positive action and how can you use it in your business? Read on to find out.

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What Is Positive Action In The Workplace?

Every company must follow the legislation set out in the Equality Act 2010, which states that employees must be treated fairly and equally, irrespective of any protected characteristics that they may hold. This has led many businesses to increase their efforts when it comes to recruiting, training and promoting those with protected characteristics. However, as it is illegal to discriminate against a person as a result of their protected characteristics, regardless of whether that discrimination is positive or negative, it can be difficult to put measures in place to increase diversity without discriminating. This is where positive action is particularly useful.

Positive action enables a company to decide between two equally qualified candidates based on their protected characteristics. For example, if two equally experienced and qualified candidates apply for a job role, but one holds a protected characteristic, the employer is legally able to choose the candidate with the protected characteristic in order to increase the diversity of their workforce and give encouragement and opportunities to those who are under-represented and potentially disadvantaged.

Protected Characteristics – What You Should Know

In UK law, there are nine protected characteristics that are set out, against which it is illegal to discriminate. A person can hold one or more of these characteristics, and it’s important to ensure that you do not discriminate against a person as a result of their protected characteristics. But what are the protected characteristics in the UK?

The nine protected characteristics which are set out in the Equality Act 2010 include:

What Does The Law Say?

Positive action was added to the Equality Act in 2011, with the aim of encouraging and facilitating the recruitment, training and promotion of workers who possess protected characteristics. This includes those from minority backgrounds, pregnant women and those with a religion or belief.

The Equality Act states that positive action can be taken when the following three conditions have been met:

  • You reasonably believe that a particular group of people that hold a protected characteristic could have a disadvantage as a result of their characteristic or have a disproportionately lower level of participation.
  • The action that you plan to take will meet the needs of the group, encourage or enable them to minimise or overcome that disadvantage and encourage or enable the group to participate in the intended activity.
  • The action taken is proportionate – meaning that alternative actions would not have been as effective in achieving the aims or could lead to other groups being disadvantaged.

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Positive action legal

Why Is Positive Action Legal?

Some groups of people who hold protected characteristics may be disadvantaged or under-represented in certain scenarios. This can be as a result of past or present discrimination, exclusion or experiences.

The Equality Act introduced positive action to allow employers and service providers to counter this disadvantage. Positive action enables companies to take action to enable those who are under-represented or disadvantaged to benefit from equal opportunities.

It’s important to note that positive action is not compulsory by law. Positive action is a voluntary activity that some companies choose to take part in to facilitate equal opportunities and encourage diversity.  

Benefits Of Positive Action

Although positive action is voluntary and it is not required by law, it is an effective tool when it comes to encouraging diversity within a company and facilitating equal opportunities. It can also help to reduce the disadvantage that many groups that hold protected characteristics may face in everyday life, particularly when it comes to their employment opportunities.

Many businesses also find that increasing diversity in the workplace benefits their business. This is because increased diversity often leads to a more diverse talent pool, along with a wealth of new experiences to draw upon. This can help you to better understand your customers, as well as finding new ways of working.

Positive Action Examples

There are many different ways in which you could choose to utilise positive action within your workplace. Let’s take a look at a few examples of how positive action could be used by employers to increase diversity and facilitate equal opportunities.

Lack Of Female Employees In STEM Careers

It is common knowledge that careers involving Science, Technology, Engineering and Mathematics (often abbreviated to STEM) are typically dominated by males. This means that females are under-represented in this type of career. For this reason, many employers have looked for ways to increase the number of female applicants that job roles in the STEM field attract.

One way to increase the number of female applicants for STEM job roles is to hold open days or events that are specifically aimed at females. This could help to encourage females to seek opportunities in the field, potentially increasing the number of female applicants for future job roles.

Lack Of Ethnic Diversity In The Workplace

In some industries, it is common for the workforce to be dominated by white British employees. This means that those from Black, Asian and Minority Ethnic (BAME) backgrounds may be under-represented, leaving them feeling discouraged from applying for a job role.

If you’re looking to increase ethnic diversity within your workforce, you could consider adding a statement to future job advertisements to encourage those from under-represented or disadvantaged groups to apply.

For example, one technology company adds a statement to their job adverts that reads ‘we particularly encourage applications from women, disabled and Black, Asian and Minority Ethnic (BAME) candidates’. This statement lets those from minority backgrounds know that they are encouraged to apply for the job role in question and may potentially encourage a higher number of applications from those with protected characteristics.

Deciding Between Job Applicants Based On Protected Characteristics

There may come a time when you have two equally qualified applicants for a job role. Those two applicants may be equivalent when it comes to skills and experience, but one may hold protected characteristics whilst the other does not.

Many employers wonder whether it is legal to choose the applicant that holds a protected characteristic, in order to increase diversity within the workforce.

The answer here is yes, choosing the applicant that holds a protected characteristic would fall under positive action, providing both applicants are equally suited to the job role. However, this would not be legal if the applicant that held the protected characteristic was less qualified or skilled. This is because this would fall into the category of positive discrimination, which is not legal in the UK.

Want to take the first steps to increase diversity in your organisation? Our expert team is here to help. Contact us today for advice on HR and employment law

How to increase equality in the workplace

Practical Steps To Increase Diversity And Equality In Your Workplace

Equality and diversity are more than just buzzwords when it comes to business – they are essential pieces in the jigsaw of running a successful business. Having a diverse workforce that offers equal opportunities to its employees should be the goal of every organisation, and the benefits of doing so should not be underestimated. But how can you go about increasing diversity and equality in your workplace?

1.     Watch Out For Unconscious Bias

Every person holds bias, whether or not we know it. Often, this bias is unconscious, and we don’t notice that we hold it. This makes it particularly difficult to avoid bias.

To discover your unconscious biases, you can take an Implicit Association Test (IAT), created by Harvard University. This can help you to discover your unconscious biases, so that you can be aware of where your potential biases may lie and work to avoid using these in your decision making processes.

You can also encourage colleagues to take the same test and discover their own biases. The more people are aware of their unconscious biases, the more they will be able to take action to avoid them in future, improving equality for all.

2.     Maintain Up To Date Equality Policies

It’s essential that every employee is treated fairly and equally in the workplace. This includes in day-to-day working activities, as well as in work related decisions, such as recruitment, promotion, training and redundancies.

Creating and maintaining up-to-date equality policies is essential in promoting equality in the workplace. This policy should outline the company’s stance on equality, as well as setting out measures that are taken to ensure equality and fairness in the workplace. This policy should be reviewed annually.

If you’re unsure when it comes to your company’s equality policy, it’s always best to consult with a HR expert to ensure that you get it right. Not only are the legal penalties severe, but an equal and diverse workplace will typically attract higher levels of employee satisfaction, as well as increased motivation, making it a winner all round.

3.     Take Positive Action

When you’re looking for ways to increase the diversity of your workforce and ensure equality within the company, positive action is a valuable tool. Positive action can help to increase the number of job applicants that you receive from people that hold protected characteristics, as well as helping to ensure that employees from minority backgrounds are given equal opportunities in the workplace.

4.     Seek Advice If You’re Unsure

There can sometimes be a thin line between positive action and discrimination, so it’s vital that you seek advice if you’re unsure. An HR consultant can also talk you through different ways of increasing diversity within your workforce, helping you to identify the best measures to take within your company to promote equality and increase diversity.

Positive action vs positive discrimination

When Action Becomes Discrimination

When you’re planning out positive action to take within your business, it’s also important to be aware of positive discrimination. Unfortunately, the two concepts have many similarities, making them easy to confuse. However, when you understand both concepts fully, you will begin to see the clear differences between the two.

Positive discrimination involves giving preferential treatment to an employee as a result of their protected characteristics. This includes hiring, promoting, training and redundancy decisions.

For example, imagine you are hiring for a job role and have two applicants. One holds protected characteristics but is under-qualified for the role, the other does not hold protected characteristics but holds all of the required qualifications and skills. Choosing the applicant that is under-qualified in order to increase the diversity within your workforce would fall under positive discrimination, as the only reason the applicant was chosen was their protected characteristics.

Positive discrimination is illegal, so it’s important that you are aware of it and work to avoid it. In contrast, positive action is a lawful activity and can help to ensure that equality and fairness are promoted throughout the employment process.

Related Question

Is Discrimination A Positive Action?

Positive discrimination is not legal in the UK, as it falls under discrimination in the Equality Act 2010. However, positive action is lawful and can be a useful tool in promoting equality and diversity within an organisation. When using positive action, it’s vital that you remain mindful of positive discrimination and ensure that your actions do not become discriminatory, as this would be unlawful.

What Is A Positive Action Plan?

Positive action is a great way to promote equality in the workplace and ensure fairness for all. If you’re ready to begin using positive action in your workplace, it’s a good idea to put a positive action plan in place, describing the steps that you will take to increase equality and diversity in your company.

In Summary

If you’re looking to increase diversity and promote equality in your company, positive action is an effective way to do so. This involves encouraging applicants with protected characteristics to apply for job advertisements, as well as levelling the playing field when it comes to training and promotion opportunities.

However, it’s also important to be aware of positive discrimination. Although the concepts may appear similar at first glance, there are many key differences between the two. As positive discrimination is unlawful in the UK, it’s vital that you ensure that you avoid falling into discriminatory actions.

If you need help with ensuring that your workplace provides equal opportunities for all employees whilst encouraging applications from under-represented or disadvantaged groups, our friendly team are here to help. We can offer expert advice on HR and employment law, helping you to get on the right track to becoming an employer that puts equality first.

Looking for advice on positive action? Our expert team is here to help. Contact us today for advice on HR and employment law

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About the author 

James Rowland

James is the Commercial Director at Neathouse Partners and regularly writes articles surrounding issues in HR & Employment Law. Outside of the office, James is a keen Cricketer, playing in the Cheshire League for Nantwich CC. He also loves going to watch his football team, Crewe Alexandra. Feel free to connect with James on LinkedIn.

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