1. Positive action in admissions
Dan Shaffer, SPA
Jess Moody and David Bass, ECU
UCAS Annual Admissions Conference 2017
Adapted from materials developed by Dr Chantal Davies

2. Disclaimer
NOT LEGAL ADVICE

3. Protected characteristics
Do you actively support applicants based on:
pregnancy and maternity
disability
age
sexual orientation
gender reassignment
sex
race
marriage and civil partnership*
*Section 90 of the Equality Act excludes the protected characteristic of marriage and civil partnership from additional requirements expected of further and higher education.
religion or belief

4. The Equality Act Equality Act, 2010, section 91:
Unlawful for a HE provider to discriminate:
in the arrangements it makes for deciding who is offered admission as a student
as to the terms on which it offers to admit the person as a student
by not admitting the person as a student

5. Can you treat someone more favourably?
The Equality Act
Discrimination covers both:
Direct
(e.g. treating individuals less favourably because of their age)
Indirect
(e.g. a policy which applies equally to all, but which results in disadvantaging those with a disability)
Can you treat someone more favourably?

6. The Equality Act – Public Sector Equality Duty
Public bodies must have due regard to:
Eliminate discrimination
Foster good relations
Advance equality of opportunity
by reducing disadvantage, meeting (unmet) needs, and encouraging participation where it is low
HE providers need to encourage those underrepresented to participate

7. The Equality Act – positive action
Section 158 of the Equality Act allows for, but does not require, positive action measures to be taken to help people sharing a protected characteristic if a HE provider reasonably considers, based on evidence, any of the below conditions exist:
they suffer a disadvantage connected to the characteristic
they have needs that are different from the needs of persons who do not share it
participation in an activity by those sharing that protected characteristic is disproportionately low.
Any action must be proportionate

8. What can we do in Admissions?
SPA’s briefing was designed to start discussions going.
But if you’ve identified disadvantage, specific needs, or underrepresentation,
it’s time to call in
the experts …

9. Positive Action: background
The term ‘positive action’ is not a legal term and thus is not legally defined.
An umbrella term that accounts for a wide range of measures involving:
Some form of preferential treatment
allocated to members of under-represented / disadvantaged /under-privileged group(s)
stemming from discrimination (past or present)
Scope contested and implementation measures controversial….but is it time for a ‘step change’ in Admissions?

10. Different forms of positive action
Eradicating discrimination;
Purposefully inclusionary policies;
Outreach programmes;
Preferential treatment;
Redefining merit
(McCrudden, 1986)

11. Positive action step 1: “reasonable” evidence of need.
Where a person reasonably thinks* that persons sharing Protected Characteristics:
suffer a disadvantage connected to it, or
Have needs that are different from the needs of persons not sharing it, or
Have a disproportionately low participation rate in the activity
*Evidence must be objective and rigorous – more than anecdotal or supposition.

12. Group task 1
Discuss examples of potential underrepresentation, disadvantage or differing need based on a protected characteristic and pick one which relates most to your institutions.
What evidence could you use or gather to show that you ‘reasonably think’ this particular underrepresentation, disadvantage or differing need exists?

13. Step 2: Designing an initiative proportionate to need/evidence
Proportionate means: legitimate, effective, necessary
The measure must aim at eliminating and correcting the causes of reduced opportunities.
Is the measure necessary to achieve the aim?
Does the measure account for individual context?
Think:
Are there alternative ways to achieve aim?
Adverse affect on other groups - mitigate?

14. Group Task 2
A university introduced a two year mentoring scheme and guaranteed interview for female sixth-formers to improve their confidence in applying to Engineering.
Consider the following:
What evidence might be needed to support the introduction of this measure?

15. Group Task 2
A university introduced a two year mentoring scheme and guaranteed interview for female sixth-formers to improve their confidence in applying to Engineering.
Consider the following:
Local male students are now requesting that a mentoring scheme be set up specifically aimed at them as they feel that female students are receiving preferential treatment.
Andy considers that he suffers from confidence issues as a first-generation applicant which have affected his engagement with Engineering work experience and outreach activities. He wishes to take advantage of the female mentoring scheme.

16. Positive Action Step 3: Roll-out & evaluate
Think about:
Clear, objective and measurable criteria
Transparency and communication of scheme
Measuring impact (target group and other groups)
Sunset clause: reviewing need and proportionality – when does it end?
Limits from the Equality Act:
Racial segregation is always discriminatory
Not discrimination for a disabled person to be treated more favourably

17. Unanswered questions?