Sports organisations are increasingly introducing schemes and initiatives to try and improve participation of underrepresented groups. There are legal limits, however, on how far you can go in favouring one group over another. This article explores the legal framework surrounding positive action, the discrimination risks associated with such initiatives, and key considerations for sports organisations in this area.
Diversity, equality, and inclusion (DE&I) are essential considerations for sports organisations (just as they are for businesses in every sector) in terms of fostering innovation, strengthening community engagement, and promoting fair opportunities for athletes, staff, and supporters from all backgrounds. By championing a culture that values and respects every individual, sports organisations can enhance both on-field performance and off-field relationships, while also mitigating potential legal and reputational challenges associated with discrimination.
Some organisations have sought to address existing inequalities by introducing schemes and initiatives designed to close the gap. For example:
- The Premier League introduced the Coach Inclusion Diversity Scheme (CIDS) in 2020/21, aimed at increasing representation among: (i) females; and (ii) those with Black, Asian or Mixed Heritage backgrounds, in full-time coaching roles across English professional football.
- Launched in 2020, the Football Association's Football Leadership Diversity Code, was introduced to address racial and gender imbalances in the sport. By voluntarily subscribing to this initiative, football clubs committed to meeting certain recruitment diversity targets, including ensuring that 15% of new executive hires were of Black, Asian or Mixed-Heritage in executive jobs, 30% of new executive hires were female, and 25% of new coaching hires likewise came from Black, Asian or of Mixed-Heritage backgrounds.
Positive action in UK law
The Equality Act 2010 allows organisations to take what is known as "positive action" (a soft form of favourable treatment towards a disadvantaged group). In practical terms, this simply means offering a helping hand to individuals who have historically been disadvantaged or underrepresented in the workforce because they have a particular protected characteristic (e.g. disability, race, sex, age etc). For more information, see our Inbrief on positive action in the workplace.
Although entirely voluntary, positive action can be a useful tool to remove obstacles that prevent people from entering in employment - whether those barriers to entry come from lack of opportunities, resources or support.
While positive action is legal, it is critical to recognise the difference between supporting disadvantaged groups and engaging in positive discrimination. Positive discrimination is the automatic favouring of one group over another because of their protected characteristic, without proper consideration of merit. This is generally unlawful in Great Britain (apart from "reasonable adjustments" for disabled people and, to some extent, provisions protecting women who are pregnant or who have given birth). We have written about the government guidance on positive action in the workplace which does clarify some key points about when employers can and can't take such action, although it doesn't address some of the trickier practical issues.
Positive action can mean various different things. It may involve taking steps to encourage individuals who are part of a group with low participation rates to get involved - for example, by providing targeted support and training, or giving them access to extra opportunities to boost their involvement. This might also extend to recruitment and promotion. Positive action may also focus on removing barriers that discourage or prevent a group from participating. This could involve making structural changes to encourage inclusive participation, whether that means adjusting policies, or adapting venues or equipment, so that prospective players, coaches, officials, or administrators can take part on more equitable terms.
The Equality Act 2010 contains two main positive action provisions.
The first applies where you "reasonably think" that a protected group:
- suffers a disadvantage (e.g. legal, social or economic barriers to entry);
- has particular needs (e.g. IT training needs or wheelchair accessibility requirements); or
- does not participate enough in an activity (e.g. are underrepresented in the workforce).
If this is the case, you can take proportionate steps or action to meet the relevant needs, reduce the disadvantage or increase participation of the target group. Contracts of employment, apprenticeships and contracts personally to do work are all covered by this provision. However, it is important to note that this excludes recruitment and promotion, which is covered by the second provision.
The second is often known as the "tie breaker" provision. It only applies in the case of recruitment and promotion. It allows employers to give preferential treatment to certain candidates provided that:
- both candidates are equally "as qualified" to be recruited or promoted;
- granting the preference is proportionate; and
- there is no policy of automatically granting a preference (as this would be unlawful positive discrimination) - rather, this decision is made on an individual case-by-case assessment.
Both provisions require you to show evidence of underrepresentation or disadvantage and to demonstrate that any positive action taken is proportionate. Put simply, the approach taken should be effective, appropriate to the aim, and there should be no less discriminatory ways to address it.
Key considerations for sports organisations
To demonstrate that a positive action programme is proportionate, an organisation will (as a minimum) need to make sure that it is time limited, targeted, and takes account of the extent of the problem and the impact of any other diversity measures or commitments.
Any actions taken must be suitable and no more extensive than necessary to address a specific disadvantage or under-representation. If those measures go beyond simply levelling the playing field (pun intended!) and instead give certain individuals an automatic advantage, there is a risk of unlawful discrimination claims.
From a reputational standpoint, setting out a clear, transparent, and well-founded rationale for undertaking particular positive action measures can also significantly reduce the likelihood of negative media coverage, a disgruntled fanbase and pressure group litigation.
It is worth noting that positive action extends across various aspects of sport, from competition and coaching to volunteering, officiating, governance, and management. It may also stretch beyond direct participation in the organisation's workforce to include the way services and premises are provided, used, or managed through suppliers and other third parties.
By taking these measures in a balanced and proportionate way, sports organisations can help ensure a fair, inclusive environment without drifting into practices that would breach discrimination law.
Practical tips for taking positive action
- Ensure there is statistical evidence to support the under-representation or disadvantage.
- Assess each individual matter on a case-by-case basis, ensuring there is no policy of automatically granting a preference.
- Carefully consider how the proposed positive action will impact the broader workforce and compare it to other diversity measures that could achieve similar objectives. Keep a detailed record of the conclusions drawn, making clear why the chosen approach was ultimately viewed as both necessary and proportionate.
- Review any positive action programmes on an annual basis - so it is time limited, and there is a regular review to assess whether it remain permissible and whether other diversity measures are more appropriate as the situation (hopefully) improves.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
