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Positive Action and Discrimination - Are You Getting It Right?

on Wednesday, 04 December 2019.

As employers drive towards achieving diversity in the workforce, a recent case highlights how difficult it can be to achieve lawful positive action in the recruitment process.

Furlong v The Chief Constable of Cheshire Police

Mr Furlong was a white, heterosexual male with no disabilities, who had applied to be a police constable with Cheshire Police. Following the successful completion of an application form and an assessment centre, he was required to attend a formal interview. During the interview, the Cheshire Police asserted that they were using positive action to recruit more police officers from underrepresented groups. They therefore appointed candidates with protected characteristics first, before filling the remaining vacancies with those who reached this stage but did not have protected characteristics. Mr Furlong, who had successfully completed the assessment centre and received positive feedback from his formal interview, was not appointed.

Subsequently he brought claims against Cheshire Police on the grounds of direct discrimination under the Equality Act 2010 (EqA). The Employment Tribunal agreed with Mr Furlong and his claim for direct discrimination on the grounds of sexual orientation, race and gender was successful.

Protected Characteristics

The 'protected characteristics' under the EqA are: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation. It is unlawful under the EqA to treat someone less favourably because they have one of these characteristics.

However, under s159 of the EqA, it is possible to apply measures of 'positive action'. This is to assist candidates with protected characteristics within the recruitment process, on the basis that those people with these characteristics are disadvantaged or their participation in an activity is 'disproportionately low.'

In order to be able to use this as a means of recruiting A (who has a protected characteristic) over B, the following factors must be adhered to:

  • A must be 'as qualified' as B
  • the employer cannot have a policy of treating people with the protected characteristic more favourably than those without
  • the action in question must be a 'proportionate means of achieving the aim'

Mr Furlong claimed that, although Cheshire Police were entitled to treat candidates with a protected characteristic more favourably under s159, they did not do so lawfully because some of the successful applicants were not as qualified for the job as he was. He argued that Cheshire Police had a policy of treating people with protected characteristics more favourably and the action taken was not proportionate.

'As Qualified'

Guidance from the Government Equality Office, considered by the Employment Tribunal, states that it would be lawful for a Police Service to give preferential treatment to candidate from (for example) underrepresented ethic minority backgrounds. This is provided that 'the comparative merits of other candidates are also taken into consideration.'

When considering what is meant by 'as qualified' the Tribunal took into account overall ability, competence and professional experience, 'together with any relevant formal or academic qualification as well as any other qualities required to carry out the particular job.' Although the Tribunal accepted therefore that there was a legitimate aim in attempting to increase the representation of minority groups, the Tribunal did not accept that all the successful candidates were 'as qualified' as some of the unsuccessful candidates. Positive action should be used as a 'tie-breaker' to differentiate candidates who have, for example, obtained the same score in a quantitative assessment process.

Policy of Treating More Favourably

The Police Service were criticised for applying a 'blanket approach' of positive action, they did not consider each candidate individually and appraise them fairly on their merits. At the interview stage, instead of taking into account the qualitative data that had been collected so far, a pass/fail system was introduced. Candidates were not prioritised in respect of their attributes, they were deemed equal at this point and those with protected characteristics were then prioritised and, in many cases, appointed.

The Tribunal stated that there should be some 'structure and methodology' to the process of choosing successful candidates and the rules cannot be fixed. The Tribunal concluded this was a blanket approach which failed to comply with the requirement that the employer cannot have a policy of treating persons who share the protected characteristic more favourably in the recruitment process.

Proportionate Means of Achieving a Legitimate Aim

The Police Service tried to rely on the argument this was a legitimate aim of increasing diversity in the workforce. Mr Furlong did not dispute that this was a legitimate aim, however he claimed that the actions taken by the Police Service had not been proportionate. The Tribunal pointed to the need for an objective balance to be struck between the discriminatory effect and the need it is seeking to address. Importantly, the Tribunal noted that the decision making process did not take into account the individual circumstances of each candidate.

Furthermore, there was a need for the Police Service to show that their actions had been 'reasonably necessary.' The Tribunal ruled that this had not been proportionate, as the 'knock-on effect of discontentment and disillusionment may lead to a lack of confidence in the ability of appointees for the role of police officer.' In addition to this, the police force as a whole were already having some success with diversifying recruitment, following earlier measures that had been put in place. This the Tribunal concluded, coupled with the potential for a lack of faith in police officers' ability, was not in the public interest and therefore the use of positive action in this case was not justified.

How Does This Impact Public Sector Organisations?

This judgement will likely be seen as disheartening for employers as it emphasises the difficulties that employers will have in trying to use positive action lawfully. It was recommended that employers can use positive action initiatives such as targeted recruitment campaigns and familiarisation events. However in practice it is widely understood that it is very difficult to achieve the desired impact from this alone, particularly in roles where a physical assessment forms part of the recruitment process. There is increasing pressure on public services to make sure that workforces are diverse and representative, however employers are being reminded that it is very difficult to use positive action lawfully and the dangers of getting it wrong can be costly.

Careful use of a quantitative scoring matrix applied at all stages of the process may have made a difference to the result in this case, however it is clear that extreme caution should be used when running the recruitment process this way, and professional advice should be sought early on.


Want learn more about positive action and the impact on the recruitment process? Please contact Allison Cook in our Employment Law team on 0117 314 5466, or complete the form below.

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