Question 5
Does your solution meet your Legitimate Aim in a proportionate way?
What is the University’s Risk Appetite? The task here is to balance the institutional risk of being discriminatory against the risk of potential complaints for taking disproportionate or unfounded Positive Action.
The EHRC’s How to improve board diversity: a six-step guide to good practice suggests that to be 'proportionate' you must balance the need for action against its impact on people with other protected characteristics, taking into account factors like:
- how long the under-representation has lasted;
- the type of barriers experienced by the under-represented group;
- the success or failure of other action taken to tackle those barriers;
- whether there are any alternative ways to address the under-representation which are less likely to disadvantage other protected groups.
Following the example from Question 4A, the first option is disproportionate and discriminatory towards other groups of people (in this case men), and it doesn’t address the legitimate aim of increasing women’s participation in physics courses.
The second option meets the legitimate aim in a proportionate way (it is not going too far and becoming unlawful). It is likely to be effective in attracting women to study physics at the university and the less favourable treatment of men who are over-represented would be balanced by the fact that other forms of support are available to both male and female students.
It is recommended that you speak to relevant colleagues to assess:
- How proportionate Positive Action is as a means of being anti – discriminatory in this case e.g., will it be effective and practical?
- Try to identify who a complainant might be and consider how likely they would become aware of it and make a complaint and assess whether a complainant might suffer some loss as a result of your proposed Positive Action.
- Is the proposed intervention likely to be controversial in the context of the School/Service/Sector?
- How would the institution justify taking Positive Action in this case? Make a note of your thinking at this point in case you or others need to refer to it.