Guide to Taking Positive Action
Why is Positive Action Important?
One of the Royal Aeronautical Society’s Strategic Aims is to “Extend and support the Society membership base nationally and internationally, ensuring inclusivity, diversity and active engagement”. The Society does this in a number of ways, as set out in our Diversity & Inclusion Strategy. One of the measures available to the Society is to engage in Positive Action initiatives, lawfully taking specific steps to encourage people from under- represented groups to help them overcome disadvantages not experienced by majority groups. Such Positive Action is considered necessary because some discrimination is so entrenched that merely prohibiting it is insufficient. The Society supports the use of Positive Action where it is appropriate.
What is Positive Action?
In the UK, the concept of Positive Action is enshrined in law in Section 158 of the Equality Act 2010. This makes it lawful to take action to:
• Enable or encourage people who share a protected characteristic to overcome a disadvantage connected to the characteristic;
• Meet the needs of people who share a protected characteristic where those needs are different to those of people who do not have the characteristic; or
• Enable or encourage people who share a protected characteristic to participate in an activity in which their participation is disproportionately low.
These objectives underpin many of the Society’s Diversity & Inclusion initiatives. This includes the work of Women in Aviation and Aerospace Committee or our Named Lectures1 that celebrate the diversity of our Sector to encourage participation from under- represented groups. Our Alta mentoring platform for female professionals is an example of where we have taken Positive Action due to the different needs of that particular group.
The Equality Act (in section 159) also allows an employer to select a candidate from an under-represented group over another candidate, where both candidates are “as qualified as” each other. Whilst this additional form of Positive Action has some relevance to the Society as an employer, it is unlikely to be pertitnent to much of the wider output delivered by the Society’s Boards, Committees, Specialist Group and Branches and is therefore not considered further in this guide.
1 The annual Amy Johnson and Mary Jackson Named Lectures. 1 V1.0 (15 Apr 21)
Whilst the Society’s approach to Positive Action is based on UK law, it supports its appropriate use throughout the Society’s global footprint as a matter of policy unless local legislation restricts such use.
What is the Difference Between Positive Action and Positive Discrimination?
There is often confusion between Positive Action and Positive Discrimination; this can lead to a reluctance to take Positive Action by those who are worried that they are acting unlawfully.
Positive Discrimination is when someone who possesses a protected characteristic which is under-represented is treated more favourably than someone who does not share that same characteristic. As noted above, Positive Action is permitted under UK law. Conversely, save for some explicit exceptions2, Positive Discrimination is generally unlawful in the UK.
In considering this, it is worth remembering that the aim of UK equality legislation is not to ensure everyone is treated exactly the same. Rather its aim to ensure everyone has an equality of opportunity; in certain circumstances this will need some groups to be treated differently. As a result, the definitions of discrimination in the Equality Act consider whether treatment is “less favourable” or gives rise to a “particular disadvantage” rather than simply whether the treatment was different between 2 groups.
This is important in the context of considering why Positive Action is lawful (and therefore not Positive Discrimination).
POSITIVE ACTION POSITIVE DISCRIMINATION Before After Before After Positive Positive Positive Action Positive Action
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Figure 1 – Positive Action versus Positive Discrimination.
2 Generally, these exceptions apply to the treatment of those with disabilities. 2 V1.0 (15 Apr 21)
Positive Action seeks to overcome a disadvantage or encourage participation. To help explain this, consider the left-hand picture at Figure 1 above, which represents the start of a running race. The individual in red has an initial disadvantage compared to the other runners in blue as that individual is starting further back. Positive Action seeks to eliminate this disadvantage so that the runner in red can start the race on the same start line as the other runners. Who ultimately then wins the race is still based on merit but all participants had a fair opportunity to compete for the win.
In comparison, the right-hand picture in Figure 1 shows the application of Positive Discrimination. The runner in red has the same initial disadvantage compared to the other runners. However, the application of Positive Discrimination has then led to the runner in red being given a head start – it is now the blue runners who are at an unfair disadvantage.
What can be seen from this, admittedly simplified conception, is that the 2 key aspects to Positive Action are that there is actually a disadvantage to be overcome and that the Positive Action goes no further than to seek to overcome that disadvantage.
In a more realistic example, a Society Branch that has 10 lectures a year might conclude that it should dedicate one to be given by a female speaker because historically all of it lectures in previous years have been given by men. Its aim in doing so is to increase participation from an under-represented group whose historical participation has been low. Furthermore, as men would not be excluded from giving the other 9 lectures that year, male speakers would still be far more likely to speak at a lecture and thus are unlikely to be able so show that the Positive Action the Branch took was inappropriate or amounted to Positive Discrimination.
Of course, for a different Society Branch that historically has had a larger number of female speakers, the case for a dedicated lecture may be less strong. Indeed, it may not be appropriate at all if the usual number of female speakers is high enough.
Positive Action in Practice
What is clear from the above is that appropriateness of Positive Action is sensitive to the facts of the situation and must be proportionate. To that end the Society does not dictate centrally what Positive Actions the Society’s Boards, Committees, Specialist Groups or Branches should undertake. Those groupings are themselves best placed to judge what is appropriate based on their on particular circumstances.
In that regard, a clear understanding of the current situation is vital. However, it is worth noting that the Equality Act only requires that someone “reasonably thinks” there is a disadvantage that needs to be tackled; detailed statistical data or research, whilst perhaps helpful, is not required in order to take Positive Action.
It is also important that the continuing appropriateness of any Positive Action is periodically reviewed. The aim, after all, of such actions is to seek to reduce disadvantages and increase participation of under-represented groups; as such participation increases the
3 V1.0 (15 Apr 21) need for Positive Action may diminish. Continuing Positive Action indefinity without review will undermine the case that it is proportionate.
It is also worth noting that the way Positive Action is taken can affect the extent to which it needs to be justified. For instance, holding a conference to encourage people from ethnic minorities to become pilots, but which anyone can attend, or providing visual support to groups (such as use of Pride flags for the LGBTQ+ community) do not give rise to any material disadvantage to majority groups. This makes them less contentious than more exclusive interventions.
Indeed, the UK’s Equalities and Human Rights Commission states that action taken to benefit those from one particular protected group that does not involve less favourable treatment of those from another protected group should not be classed as Positive Action at all3. Rather these just represent effective tactics to increase diversity and inclusion and are always lawful. With that in mind, it is often helpful to make initiatives available to the widest audience where this is practical and appropriate.
Where that is not the case and Positive Action is being considered, it is recommended that a plan4 is created that:
• Sets out evidence of the disadvantage, particular need and/or disproportionately low levels of participation, as appropriate, and an analysis of the causes.
• Sets out specific outcomes which are being sought to achieve.
• Identifies possible action to achieve those outcomes.
• Shows an assessment of the proportionality of proposed action.
• Sets out the steps the organisation decides to take to achieve these aims.
• Sets out the measurable indicators of progress towards those aims, set against a timetable.
• Explains how they organisation will consult with relevant groups including both members of the protected group for whom the programme is being established and those who are not part of that group.
• Specifies the time period for the programme.
• Sets out periods for review of progress of the measures towards the aim to ensure it remains proportionate.
3 EHRC’s Employment Statutory Code of Practice, Chapter 12 refers. 4 These actions have been adapted from the EHRC guidance. 4 V1.0 (15 Apr 21)