Promotion in the absence of competitive exercise was unlawful positive discrimination
An Employment Tribunal has found that a police force acted unlawfully when it promoted a minority ethnic Sergeant into a Detective Inspector role in the absence of a competitive exercise.
Race discrimination claim
In the case of Turner-Robson and others v The Chief Constable of Thames Valley Police, the claimants are three white British police officers. A job vacancy arose for a Detective Inspector role. Before the role was advertised, it was filled by a minority ethnic officer who was part of the Respondent's "Positive Action Progression Scheme", which aims to fast-track minority ethnic officers from Sergeant to Inspector. The claimants claimed they were directly discriminated against on the grounds of their race.
The power to take positive action
Under the Equality Act 2010, employers have a general power to take positive action to address the disadvantages experienced by people with a shared protected characteristic. Positive action helps address the under-representation of people with protected characteristics in the work context. It allows employers to design measures targeted towards particular under-represented groups. Positive action must be a proportionate means of achieving the relevant aim.
In the context of recruitment and promotion, the general power to take positive action does not apply. Instead there is a specific provision that allows employers to take a protected characteristic into account when taking recruitment or promotion decisions, where people with that protected characteristic are under-represented or at a disadvantage. The power to take positive action in the context of recruitment and promotion only applies where the candidates are equally well qualified. Employers are not permitted to adopt a blanket policy of displaying more favourable treatment to candidates with a particular protected characteristic. Each case must instead be considered individually.
Tribunal decision
The Tribunal upheld the claimants' claims of race discrimination. The action taken by the respondent fell within the scope of the power to take positive action in the context of recruitment and promotion. The general power to take positive action did not apply. In respect of the power to take positive action in recruitment and promotion, the respondent had fallen short. It had failed to carry out a balancing exercise in order to determine whether positive action was proportionate. It had also failed to carry out an equality impact assessment. The fact that the candidate was automatically slotted into the role without any real thought or consideration meant that the respondent's actions went beyond positive action, and strayed into the realms of positive discrimination. The claimants (who did not share the successful candidate's protected characteristic of race) were disadvantaged in that they were denied the opportunity to apply for the role. This was not a proportionate means of achieving a legitimate aim.
Learning points
This is an interesting decision that demonstrates where so-called positive actions risks straying into unlawful positive discrimination. In this case, had a recruitment exercise been carried out, the successful candidate had a good chance of succeeding on merit. It was not necessary to slot her into the role. In doing so, the respondent unfairly disadvantaged the claimants, and this could not be justified.
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