Positive action: First Employment Tribunal case highlights stumbling blocks

An Employment Tribunal has unanimously found that a police force’s recruitment process directly discriminated against a white, heterosexual, male.

In the first decided case on the use of positive action provisions under Section 159 Equality Act 2010, an Employment Tribunal has unanimously found that a police force’s recruitment process directly discriminated against a white, heterosexual, male applicant.

What happened?

The claimant, Mr Furlong, a white heterosexual male without a disability, applied for a position as a Police Constable in the 2017/18 recruitment process with the respondent, Cheshire Constabulary.

The recruitment process comprised three stages: an application form to check candidate eligibility; a ‘sift’ stage comprising a competency interview and various written and interactive exercises; and, finally, an interview stage for all candidates who had successfully passed the ‘sift’. In 2017/2018, a large cohort of 127 candidates progressed to interview. At this final stage, the respondent applied ‘positive action’ appointing first any candidates with protected characteristics before selecting from the pool of remaining applicants.

Despite passing the ‘sift’ and appearing to perform well at interview, Mr Furlong did not secure an appointment. He brought claims of direct discrimination on the grounds of sexual orientation, race and sex, alleging that the respondent had unlawfully treated candidates with protected characteristics more favourably than himself, when they were less qualified for selection. The respondent contended that it had lawfully applied positive action measures within section159 Equality Act 2010 to boost recruitment from underrepresented groups.

Positive action

Section 159 permits positive action measures to be applied by an employer, for example as a part of a recruitment or selection process, if it reasonably thinks that ‘persons who share a protected characteristic suffer a disadvantage connected to that characteristic’ or ‘participation in that activity by persons who share a protected characteristic is disproportionately low’. In that situation, an employer may treat a candidate with a protected characteristic ‘more favourably in connection with recruitment or promotion than another person’ but only if that person is ‘as qualified’ as non-protected candidates.

Further, the employer must show that it ‘does not have a policy of treating persons who share the protected characteristics more favourably in connection with recruitment or promotion than persons who do not share it’. Lastly, an Employment Tribunal must be convinced that ‘taking the action in question is a proportionate means of achieving the aim’ of encouraging persons with the protected characteristic to ‘overcome or minimise disadvantage’ or participate in the activity in question.

The respondent produced ‘a plethora of evidence’ on the demographics of the police force and the respective underrepresentation of LGBT, BAME and female police officers. It also pointed to an extensive and varied equality and diversity programme as evidence of an identified need to promote inclusivity.

What does ‘as qualified’ mean?

Despite accepting the existence of a legitimate aim to improve minority representation, the Employment Tribunal, drawing on the explanatory notes to the Equality Act 2010 and the Equality and Human Rights Commission Code of Practice, found that, the respondent had misapplied section159. In essence, the provision allows positive action to be used as a tie-breaker i.e. where an employer is faced with making a choice between two or more candidates who are of ‘equal merit’ it can take into consideration whether one is from a group that is disproportionately underrepresented or otherwise disadvantaged within the work force. An employer may take into account a candidate’s overall ability, competence and professional experience together with formal or academic qualifications and suitability for the particular post.

Upholding the claim, the Employment Tribunal held that the respondent had not used positive action as a ‘tie-breaker’. Rather it had ‘obtained and ignored qualitative data’ which demonstrated a range of skill and suitability amongst the 127 candidates who had passed the ‘sift’ stage, and had effectively ‘applied an artificially low threshold’ in choosing to ‘deem as equal’ all 127 candidates who had reached interview stage. While no formal scoring framework was applied to the final 127, the evaluation forms completed by interviewers clearly showed that some candidates were stronger than others.

In effect, rather than selecting between equally qualified candidates, the respondent had applied a ‘policy’ of preferring candidates with protected characteristics, which is prohibited by legislation.

Mr Furlong had performed comparatively well at interview and had received positive feedback. The Employment Tribunal was persuaded that, but for the inappropriately broad application of positive action principles, he would have successfully secured a post.

What does this mean for me?

Since its introduction, section159 of the Equality Act 2010 has been seldom used by employers, mainly due to perceived difficulty of demonstrating that two or more candidates are truly comparable. Unless this decision is successfully appealed those advising employers will remain cautious about suggesting its use. There has been much rhetoric from Government about the need to make workforces more diverse. However, this decision demonstrates that current legislation makes this objective difficult to achieve. If positive action is to be used effectively to bring about real change, more user-friendly legislation with broader reach will arguably be needed.

Ben Daniel is Partner and Head of Employment, Pensions and Immigration team at Weightmans LLP. If you have any concerns about this case, or questions about implementing a ‘positive action’ strategy in your organisation, please do not hesitate to contact Ben or speak to your usual Weightmans advisor.

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