Before taking positive action, a school should ask itself the following questions:
• Is the action an appropriate way in which to achieve the stated aim?
• If so, is the proposed action reasonably necessary to achieve the aim – that is, in all of the circumstances, would it be possible to achieve the aim as effectively by other actions that are less likely to result in other people being treated less favourably than those for whom the action is taken?
Example: A primary school analyses its data and finds out that boys’
literacy levels are lower compared to girls’ overall. The school decides to meet its aim of increasing boys’ literacy by running additional literacy classes for all boys, adopting different learning styles and more intensive support for pupils. This is unlikely to be a proportionate means of achieving a legitimate aim. It would involve less favourable treatment of female pupils who are underachieving, and would not meet the appropriate and
necessary test, since not all boys are underachieving in literacy.
Example: A secondary school reviews its data on participation in PE and discovers that female Muslim pupils are far less likely to take part in swimming lessons than other groups of pupils. After speaking with pupils and parents, it is found that the mixed-sex swimming classes and the type of swimming costume are key barriers preventing these pupils from participating.
The school decides to run separate swimming lessons for female Muslim pupils, with a female swimming instructor, and makes a change to the PE uniform to allow a full-body swimming costume to be worn, as opposed to a regular one-piece costume.
This is likely to be a proportionate means of achieving a legitimate aim.
Although this would involve less favourable treatment of other pupils who will not have access to these lessons, the action could meet the appropriate and necessary test, since it is likely to be effective in increasing participation of female Muslim pupils in swimming classes and there is no obvious alternative approach that would meet this aim.
The less favourable treatment would be balanced by the fact that other female and male pupils have similar amounts of access to swimming classes, and non-Muslim female pupils are permitted to wear a similar style of swimming costume if requested.
Positive action
Taking action to overcome or minimise disadvantage 7.13
This is the first of the stated aims for which schools may take positive action.
The Act does not define what ‘disadvantage’ means, but it includes exclusion, rejection, lack of opportunity or choice, and barriers to accessing provision.
7.14
The only limit that the Act places on positive action to overcome or minimise disadvantage is that it must be a proportionate means of achieving this aim.
So positive action could include action to identify possible causes of the disadvantage through consultation and surveys, or a review of data, and then:
• targeting provision at specific disadvantaged groups, for example through advertisements, outreach programmes and special arrangements to encourage increased take-up;
• aiming provision specifically at a disadvantaged group;
• making provision in a different way, at different times, at different locations; and/or
• making specific provision for a disadvantaged group only.
7.15
Positive action to overcome disadvantage may be both enabling, such as providing a group with specific provision, and/or encouraging, such as advertising a provision in a publication aimed at a particular group.
Taking action to meet different needs 7.16
The second of the stated aims for which positive action may be taken is to target the needs of pupils who share a protected characteristic where those needs are different from the needs of pupils who do not share that
characteristic.
Example: A school is aware, from monitoring data and observations, that few Asian parents attend parent–teacher meetings and so they are missing valuable opportunities to discuss their children’s education. A focus group identifies that the issue is a lack of interpretation services. The school arranges for a series of specific Asian parents’ evenings at which
interpreting is provided if required. This would be a lawful positive action taken to minimise disadvantage.
s158(2) (a)
s158(2) (b)
Positive action
Such needs may arise because of past or present discrimination ordisadvantage, or because of other factors that apply in particular to pupils who share a protected characteristic.
7.17
However, the needs of pupils who share a protected characteristic can be different from the needs of others, without those needs being entirely unique.
Needs may also be different because of a disproportionate failure to meet those needs in comparison with the needs of other groups, or because of the particular importance of the need to the group in question.
7.18
The only limit that the Act places on positive action to meet different needs is that it must be a proportionate means of achieving this aim. So positive action could include:
• providing education at a particular time;
• developing different ways of making provision more suited to the needs of particular groups (such as girl-only swimming lessons taught by a female teacher for Muslim girls); and/or
• making additional provision specifically to meet particular needs, such as additional English language classes for pupils whose first language is not English.
Example: Girls may need specific interventions to encourage them to study a non-traditional subject and there is evidence that Muslim girls may need additional support to address certain cultural issues.
Example: A school analyses its pupil destination data, and becomes aware that black Caribbean boys are disproportionately more likely to leave school at the age of 16 and not continue in education or training. The school is aware of gradual disengagement from education by these pupils from the age of 14. The school decides to run activities for black Caribbean boys from age 14 to try to raise aspirations and prevent this disengagement. These activities include targeted careers education, giving the pupils the opportunity to visit local employers and training providers, and being assigned a mentor from the same background studying at university.
Positive action
Taking action to encourage participation 7.19
The third and final reason for which positive action may be taken is to enable or encourage pupils who share a protected characteristic to participate in an activity in which participation by people who have that characteristic is disproportionately low. It follows that there will need to be some reliable indication or evidence that participation in the activity in question by people with the protected characteristic is low compared to participation by
members of other groups, adjusted if necessary to allow for relevant factors such as type of school and locality.
7.20
Positive action may be taken not only to facilitate access to the activity itself, but also to enable or encourage experiences of undertaking the activity and completion of it. It includes activities undertaken, organised or facilitated by a school, and might include school trips abroad or careers events, for
example. It could also allow schools to address the low take-up of particular courses by a particular pupil group, such as the low take-up of science courses by girls.
7.21
The only limit that the Act places on positive action to encourage
participation is that it must be a proportionate means of achieving this aim.
So positive action could include:
• providing training or additional classes targeted at pupils with a particular protected characteristic;
• extending or changing locations or times for activities to take place;
• making the provision in different ways;
• targeting advertisements and prospectuses, and sources of advice;
• improving careers advice and providing mentoring for pupils who have the protected characteristic; and/or
• using outreach and monitoring.
s158(2) (c)