Guidance

Chapter 10 - Positive Action

Published: 2 October 2024

Last updated: 2 October 2024

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Introduction

10.1 This chapter explains the positive action provisions in the Act (s.158).

What is positive action?

10.2 Some people may face barriers in accessing certain services, public functions or associations or have specific needs linked to factors relating to their protected characteristic.

People who share a protected characteristic may also experience disadvantage or disparities in social and economic outcomes that have been partially shaped by economic, social and political factors linked to historic or current discrimination. The causes of these structural inequalities are multiple and complex and can include past or present discriminatory attitudes, behaviours and cultural norms.

10.3 Organisations in both the public and private sector often want to take action to address these disparities and improve their services and engagement with particular groups within the community. Steps taken can include providing additional or bespoke services, separate facilities, accelerated access to services, targeting resources or induction or training opportunities to benefit a particular disadvantaged group.

10.4 The Act contains provisions which enable service providers, those exercising public functions and associations to take proportionate action to:

  • overcome or minimise disadvantage experienced by people who share a protected characteristic
  • meet their different needs
  • enable and encourage their participation in activities where they are underrepresented

These are known as the ‘positive action’ provisions.

What the Act says

The statutory conditions

10.5 A service provider, person exercising public functions or association may take any action which is a proportionate means of achieving the aims stated in the Act ('the stated aims') where they reasonably think that people who share a protected characteristic:

  1. experience a disadvantage connected to that characteristic (s.158(1)(a))
  2. have needs that are different from the needs of persons who do not share that characteristic (s.158(1)(b))
  3. have disproportionately low participation in an activity compared to those who do not share that protected characteristic (s.158(1)(c))

The stated aims

10.6 These are:

  1. enabling or encouraging persons who share the protected characteristic to overcome or minimise that disadvantage (referred to in this chapter as ‘action to remedy disadvantage’) (s.158(2)(a))
  2. meeting those needs (referred to in this chapter as ‘action to meet needs’) (s.158(2)(b))
  3. enabling or encouraging persons who share the protected characteristic to participate in that activity (referred to in this chapter as ‘action to encourage participation in activities’) (s.158(2)(c))

What does ‘reasonably think’ mean?

10.7 To take positive action, a service provider, person exercising public functions or association must reasonably think that one of the statutory conditions described in paragraph 10.5 applies, namely, 1) disadvantage, 2) different need or 3) disproportionately low participation.

This means that some indication or evidence will be required to show that one of these statutory conditions applies. That indication or evidence does not, however, have to be sophisticated statistical data or research. For example, it may simply involve looking at the profiles of service users or making inquiries of other service providers in the area. Or, it could involve looking at different rates of take-up of benefits or services, or access to memberships, or different rates of exclusions or rejections.

10.8 A decision to take positive action could be based on qualitative evidence, such as consultations with users and non-users or surveys showing poor experiences of a service, public function or association related to a protected characteristic. It may include, for example, evidence from focus groups, complaints, inspection reports, discrimination claims or evidence of similar problems gathered by other organisations.

Example

10.9 A recent prisons inspection report highlighted significant health problems experienced by prisoners who were foreign nationals, due in part to delayed diagnosis and treatment. The report detailed certain diseases to which people from certain countries are particularly vulnerable. Health records showed that few foreign national prisoners sought medical advice until they were seriously ill. This analysis of the health records led the prison authorities to reasonably think that foreign national prisoners had different healthcare needs to those of other prisoners. In addition to improving the training of prison health staff, a monthly medical check-up scheme was established for all foreign national prisoners.

This would be an example of positive action. Although foreign national prisoners were being given a preferential level of treatment, in the form of the monthly medical check-ups, the prison authorities had evidence that one of the statutory conditions described in paragraph 10.5 applies. The aim of introducing the check-ups was to meet that identified need, which is one of the ‘stated aims’ described in paragraph 10.6 above. Provided the actions taken were considered to be a proportionate means to meet that aim, it would be lawful.

What does 'proportionate' mean?

10.10 To be lawful, any action taken under the positive action provisions must be a proportionate means of achieving one of the ‘stated aims’ described in paragraph 10.6.

10.11 Proportionality requires a balancing exercise between the aim sought to be achieved and the less favourable treatment of others it may result in. The disadvantages caused must not be disproportionate to the aims pursued. The courts have broken this down into a four-stage test, which is explained in paragraph 5.53 [footnote 71].

For a measure to be proportionate:

  1. The aim must be sufficiently important to justify limiting a fundamental right.
  2. The measure must be rationally connected to the aim being pursued. A measure is rationally connected to an aim if its implementation can reasonably be expected to contribute to the achievement of the aim.
  3. The means chosen must be no more than necessary to accomplish the aim. The court will consider whether another less intrusive measure could have been used without unacceptably compromising the achievement of the aim.
  4. The impact of the rights infringement must be proportionate to the likely benefit of the measure.

10.12 When considering proportionality in relation to positive action, the factors taken into account will vary depending on the stated aim, as set out in paragraph 10.6. Relevant factors will include:

  • the objective of the action taken or to be taken, including the cost of that action
  • the seriousness of the relevant disadvantage
  • the degree to which the need is different
  • and the extent of the low participation in the particular activity

Example

10.13 Figures from competition records show that fewer women than men engage competitively in judo and this is because of their lower overall participation in the sport. A national judo organisation considers two options to meet its aim of encouraging women’s participation in the sport and thereby increasing their engagement in competitive judo.

One option is to stage a major judo competition with prize money for women that is twice the amount than for men.

The second option is to run a six-month publicity campaign which includes a limited number of free judo taster sessions for women only to encourage women to try out judo.

The first option is unlikely to be a proportionate means of achieving greater participation by women. It would discriminate against men who compete in judo and it would only benefit women already active in the sport. As such, it is unlikely to meet the third and fourth stages of the proportionality test.

The second option is more likely to be a proportionate way to meet the organisation’s aim. Although it would involve less favourable treatment of men (both in terms of more limited promotion of men within the sport and exclusion from the free taster sessions), this action could be both appropriate and necessary. It is likely to be effective in attracting more women to the sport, and the less favourable treatment of men would only be short-term.

Action to remedy disadvantage

What is disadvantage for these purposes?

10.14 ‘Disadvantage’ is not defined in the Act. It may, for example, include exclusion, rejection, lack of opportunity, lack of choice, barriers to accessing services or disparities in social and economic outcomes (read paragraph 5.20). Disadvantage may be obvious from statistical sources, such as national data. In other cases, it may be shown by qualitative evidence or from the results of monitoring that has been carried out.

What action might be taken to enable or encourage people to overcome or minimise the disadvantage?

10.15 The Act does not limit the action that could be taken, provided it satisfies the statutory conditions and is a proportionate means of achieving this stated aim (s.158(2)(a)). For example, such action could include identifying possible causes of the disadvantage through consultation, surveys or a review of data, and then:

  • targeting services at specific disadvantaged groups, for example, by advertisements, outreach programmes or special arrangements
  • providing services or certain types of memberships specifically aimed at a disadvantaged group
  • providing services or exercising public functions in a different way, for example, at different times or locations

10.16 The Act allows action to be taken where people who share a protected characteristic experience a disadvantage connected to that characteristic, to overcome or minimise the disadvantage. The action can be both enabling, such as providing group specific services, and / or encouraging, such as advertising a service in a publication aimed at a particular group.

Example

10.17 A local crime survey found that Muslims in the area had a significantly greater fear of crime than any other group, and police data suggested that Muslims were more likely than other groups to be victims of crime.

The police consulted with members of the community, including holding meetings in Muslim community centres, about what actions could be taken to help people feel safer. Taking account of the feedback from the meetings, the police developed a programme of actions to address the concerns raised. This included actions such as visiting Muslim shopkeepers to advise them on crime prevention, and uniformed female police officers meeting groups of Muslim women to discuss personal safety for them and their children. Provided there was a reasonable belief that the disadvantage existed, and that the action was considered to be proportionate, this would be lawful positive action.

Action to meet needs

What are ‘different’ or ‘particular’ needs?

10.18 A group of people who share a particular protected characteristic have ‘different needs’ if, due to past or present discrimination, disadvantage or factors that especially apply to people who share that characteristic, they have needs that are different from the needs of others. This does not mean that the needs of a group have to be entirely unique from the needs of other groups to be considered ‘different’. Needs may also be different because, compared to the needs of other groups, they are not being met or the need is of particular importance to that group.

10.19 For example, all pregnant women need good antenatal care. However, the high rate of infant mortality among Gypsies and Travellers may indicate that they have different needs for antenatal, maternity and child health services, such as requiring more frequent antenatal health checks.

What action might be taken to meet those needs?

10.20 The Act does not limit the action that service providers, those exercising public functions or associations can take to meet different needs, provided the action satisfies the statutory conditions and is a proportionate means of achieving this stated aim (s.158(2)(b)). Such action could include:

  • reallocating resources to provide services in a particular geographical location or at a particular time, for example, increased police patrols outside gay clubs to improve protection against homophobic hate crime
  • adopting ways of providing a service or public function to meet the different needs of a particular group, for example, providing additional clinics for members of a racial group known to have particular health needs
  • providing services specifically aimed to meet particular needs, for example, English language classes, training, or culturally or religiously appropriate mental health services

Example

10.21 A voluntary organisation runs support groups for prospective adoptive parents. To improve its work, the organisation surveyed past and current group participants. It found that lesbian and gay participants were less satisfied than other parents because, though they shared all the same concerns as the other parents, they had additional issues and anxieties that they had not felt able to raise in the mixed groups. To meet their particular needs, the organisation added a separate support group for lesbian and gay prospective adopters to its programme, which they could attend in addition to the mixed support group.

Action to encourage participation in activities

What activities does this apply to?

10.22 This provision applies to participation in any activity where the participation of those who share a protected characteristic is disproportionately low. It includes activities undertaken, organised or facilitated by a service provider, person exercising public functions or association. It might include sporting activities, membership of a local patients committee, or attendance at educational, cultural or entertainment venues or events. It might include voting in national or local elections. It may also involve low take-up of membership or benefits of an association, or of services and facilities such as libraries, leisure services and services for children, disabled people or older people.

What does 'disproportionately low' mean?

10.23 The Act says that action can only be taken where the service provider, person exercising a public function or association reasonably thinks that participation in an activity by people sharing a particular protected characteristic is ‘disproportionately low’ (s.158(1)(c)). This means that the service provider, person exercising a public function or association will need to have some reliable indication or evidence that participation by that protected group is low compared with that of other groups, or compared with the level of participation that could reasonably be expected for people from that protected group. The service provider, person exercising a public function or association may base their opinion on empirical evidence including statistical data or, where this is not available, more qualitative forms of evidence derived from, for example, consultations, surveys or reviews.

What action could be taken?

10.24 The Act does not limit the action service providers, those exercising a public function or associations can take to enable or encourage people who share the protected characteristic to participate in an activity. This is on the condition that the action satisfies the statutory conditions and is a proportionate means of achieving the stated aim of enabling or encouraging participation. Such action could include:

  • providing training targeted at people with the protected characteristic
  • extending or changing locations or times for activities to take place
  • providing activities in different ways
  • improving or making more relevant the content and forms of information, advertisements and advice
  • using outreach programmes and mentoring

Example

10.25 A youth orchestra, which is run by the local authority education services, has no African-Caribbean musicians even though there is a large local African-Caribbean population. Historically, the orchestra had problems with racism among some of its members. To gain support within the African-Caribbean community, the local authority made their absolute intolerance of racist behaviour clear to its members and staff and made diversity training mandatory for all staff.

Taking account of the very low level of participation amongst members of the African-Caribbean community in the orchestra, and the historical reasons for this, the local authority then decides to go further and use the positive action provisions under the Act. It collaborates with prominent African-Caribbean musicians to search for talented young African-Caribbean musicians. It holds open trials for young people from this community, offering the most talented musicians limited free tuition aimed at helping them prepare to audition for places in the orchestra the next time there are vacancies.

Provided there is a reasonable belief that participation by African-Caribbean musicians is disproportionately low and the actions the local authority takes are a proportionate means of achieving the aim of encouraging more participation, this would be lawful positive action.

Taking action when one or more of the statutory conditions apply

10.26 Action may be taken when any one or all of the statutory conditions listed in paragraph 10.5 apply. Sometimes the conditions will overlap, for example, people sharing a protected characteristic may be at a disadvantage which may also give rise to a different need or may be reflected in their low level of participation in particular activities.

Example

10.27 Research indicates that women experience significant disadvantages in pursuing successful careers in science as reflected in their low participation in the profession, their under-representation in senior roles within it and their having fewer articles published in prominent science journals. One of the key factors contributing to this is the lack of visible role models. A leading publisher of science journals establishes an annual award for science writing by women to raise the profile of women currently working in science and encourage girls to consider it as a career.

The action taken here would be taken in accordance with both aims (a) and (c) of section 158(2), which overlap in this scenario. Provided it was reasonable to think that there was a disadvantage to women, disproportionately low participation and the action were considered to be proportionate, the creation of the women’s science writing award would be lawful positive action.

Example

10.28 A local police force was aware of the under-reporting of antisemitic hate crime. They were advised by Jewish organisations that many of their members had low levels of trust in the police and several felt that complaints about antisemitic crime were not taken seriously.

To provide better protection for the Jewish community, the police established a dedicated specially trained investigation team and, in conjunction with local organisations, set up several different reporting points for antisemitic crime. Monitoring showed increased rates of crime reporting and prosecution as well as greater trust in the police and an improved sense of safety among the Jewish community.

This would be an example of positive action because the police service took action that would potentially favour one religious group more than other religious groups. The action would be to address two aims set out in section 158(2): minimising the disadvantage that members of the Jewish community had experienced in relation to reporting crime, and to enable or encourage participation in the reporting of crime. Provided it was reasonable to think that there was a disadvantage to members of the Jewish community in reporting crime, and that there was low crime reporting, then the actions of the police, if proportionate in that context, would be lawful positive action.

Voluntary nature of positive action

10.29 Positive action is optional, not a requirement. However, service providers and those exercising public functions that take positive action often see broader benefits to their organisations, such as improved quality and take-up of services or increased effectiveness and quality of public functions. Associations can strengthen their membership base and improve the benefits and services they provide to all their members.

Time-limited positive action

10.30 If positive action continues indefinitely, without any review, it may no longer be proportionate, as the action taken may have already remedied the situation which had been the basis for positive action in accordance with the statutory conditions. This could make it unlawful to continue to take the action.

10.31 Therefore, when undertaking measures under the positive action provisions, it is advisable for service providers, those exercising public functions and associations to indicate that they intend to take the action only while the relevant statutory condition(s) apply, rather than indefinitely. During that period, they should monitor the impact of their action and review progress towards their aim.

Example

10.32 A private beauty college noted that although they had tried different forms of advertising, very few of their students were from the large local Bangladeshi community. The college principal went out to meet Bangladeshi groups and community clubs to promote the college. The college decided to offer a two-hour free ‘taster’ course for Bangladeshi people only. This resulted in an increased number of Bangladeshi students. As Bangladeshi enrolment is no longer disproportionately low, there is no longer a basis under the Act for the college to continue this positive action measure.

Positive action and disability

10.33 The Act does not prohibit treating a disabled person more favourably than a non-disabled person in relation to direct discrimination (s.13(3)). This exception applies only to disabled people. Therefore, it is not direct discrimination for service providers, those exercising public functions and associations to treat a disabled person more favourably than a non-disabled person. This means that a service provider, person exercising a public function or association can choose to only provide services to disabled people and this will be lawful.

10.34 However, the positive action provisions may still be appropriate to achieve equality of opportunity between disabled people with different impairments. This means that a service provider, person exercising public functions or association can implement positive action measures to overcome disadvantage, meet different needs or increase participation of people with one impairment but not those with other impairments.

Example

10.35 A theatre has carried out an analysis of theatre goers and has identified that attendance by Deaf people among their audiences is disproportionately low. To meet its reasonable adjustment duty, the theatre schedules a British Sign Language signer for certain performances of a new play. During the first two weeks, Deaf customers, but not customers with other impairments, are offered a 15 per cent discount for the performances with a signer. This is publicised to the Deaf community.

Provided there is a reasonable belief that Deaf people’s attendance is disproportionately low and the action the theatre takes to encourage their greater participation is proportionate, this would be lawful positive action.

Positive action and the public sector equality duties

10.36 Public authorities and those exercising public functions who are subject to the public sector equality duties may wish to consider using positive action to help them comply with those duties (s.149(1) and (3)).

Political parties and positive action

10.37 The Act recognises that certain groups who share particular protected characteristics are underrepresented among elected decision-makers. The Act includes special provisions enabling political parties to take proportionate action in selecting candidates to reduce inequality in their representation in relevant elected bodies (s.104). This is discussed in paragraphs 12.78 to 12.83.

Implementing positive action lawfully

10.38 To identify possible causes of disadvantage, different needs and underrepresentation, and to develop appropriate positive action measures, service providers, those exercising public functions and associations will benefit from the involvement of members of groups sharing a relevant protected characteristic. The contribution of such groups will also benefit the evaluation of positive action measures.

10.39 To ensure that any potential positive action measures they propose to take are lawful, service providers, those exercising public functions and associations should consider drawing up an action plan which sets out:

  • evidence of the disadvantage, particular needs or disproportionately low levels of participation, as appropriate, and an analysis of the causes
  • which stated aim the service provider, person exercising public functions or association is seeking to achieve detailing the anticipated specific outcomes
  • the specific action(s) they propose to take to achieve the desired outcome, in line with the relevant stated aim(s)
  • an assessment of the proportionality of the proposed action(s) steps
  • the steps the service provider, person exercising public functions or association decides to take to achieve the stated aim(s)
  • measurable indicators of progress towards those stated aims, set against a timetable

Service providers, those exercising public functions and associations are advised to keep some form of written record with this information.

10.40 To ensure that there is understanding and support for their action, it is important that service providers, those exercising public functions and associations are open, and explain why positive action is being taken and is lawful. That explanation should include the basis on which they are proposing particular, time-limited, positive action steps.

Example

10.41 In response to evidence about bisexual women and lesbians’ negative experiences with health professionals, a hospital looked at how to improve the health services for this group of women. They produced a series of posters designed to encourage lesbian and bisexual women to access health services, including information on what to do if they have a bad experience. The aims of the poster campaign and how to respond to any queries or complaints from other patients were explained to staff in surgeries displaying the posters. This enabled staff to deal effectively with any questions or concerns raised by service users.

Chapter 10 footnotes

  1. R (Z and another) v Hackney London Borough Council and another [2020] UKSC 40 confirms that the four-stage approach to proportionality per Akerman-Livingstone v Aster Communities Ltd [2015]3; Bank Mellat [2013] UKSC 39 applies in positive action context

Page updates

Published:

2 October 2024

Last updated:

2 October 2024