Positive discrimination held to be unlawful
Cheshire Police were found to have directly discriminated against a white heterosexual male candidate
Positive discrimination is permitted under s.159 of the Equality Act 2010, which allows employers to treat individuals with protected characteristics (a 'PC') more favourably than those that do not during recruitment and promotion. However, an employer must think carefully about how they meet the requirements of s.159 or they risk being found liable for discrimination under the Act.
In Furlong v The Chief Constable of Cheshire Police Mr Furlong, a white heterosexual male, applied to be a police constable. He was shortlisted and passed both an assessment centre and interview but ultimately did not secure a job.
Mr Furlong later brought a tribunal claim, claiming he had been discriminated against on the grounds of sexual orientation, race and sex. The Cheshire Police defended the claim by stating they had applied positive action measures permitted under s.159 to candidates successful at interview and that Mr Furlong's application did not progress as a result.
The broad effect of s.159 is to allow employers to use positive action as a 'tie-breaker' in recruitment and promotion. This is only permitted in specific circumstances, where:
1) an employer reasonably believes that persons with a PC suffer a disadvantage in connection with the PC, or that participation in an activity by persons with a PC is disproportionately low; and
2) the action taken by the employer is done with the aim of enabling persons with the PC to overcome or minimise the disadvantage, or encourages persons with the PC to participate in the activity; and
3) when taking the action at point 2, it is a proportionate means of achieving a legitimate aim; and
4) when applying the positive action, the person with the PC is as equally qualified as the other person without the PC; and
5) the employer does not have a policy of treating people who have that PC more favourably than those who do not.
The tribunal found that Mr Furlong had been directly discriminated against on the grounds of his sexual orientation, race and sex.
The tribunal lauded Cheshire Police's efforts to create a force that better represented the population it policed and considered this to be a legitimate aim. However, the tribunal found a number of issues with the application process undertaken by Mr Furlong which went to the heart of the requirements of equal candidacy and of the force taking action that was proportionate in relation to achieving their aim (points 3 and 4 above).
In particular, the tribunal found there were clear qualitative differences between the 127 candidates who passed the interview and it was not correct or appropriate for the force to suggest each candidate had equal merit so as to apply the positive action.
The tribunal found that Mr Furlong scored well on the interview assessment and considered that he likely would have been successful in his application had he not been subject to the 'equal merit' metric applied by the force.
Regarding proportionality, the force presented data showing the positive actions it had been taking and that these indicated the force was improving its diversity makeup. In light of this, the tribunal felt the changes to the force's application process (described as 'radical and substantial') were not proportionate because the force was already making progress in regard to its desired diversity makeup.
Finally, when considering the totality of the actions that Cheshire Police were taking, the tribunal concluded that it did in fact have a policy in place that treated persons with a PC more favourably than those who did not.
If an employer is minded to take positive action, this case makes clear that the employer must carefully think through its recruitment and promotion procedures if it wishes to avoid discrimination.
The starting point for an employer must be that any positive action is only used as a 'tie-breaker' where it is clear that the candidates are otherwise equally qualified for the position. Employers must therefore carefully consider how they will determine the relative strength of candidates and at what stage it will be able to legitimately apply positive action measures.
Assuming employers have a clear legitimate aim for the positive action, they must also consider if the action they intend to take is a proportionate means of achieving that aim. What is proportionate will in part be determined by the context of previous positive actions (if any) taken and their results. Here, Cheshire Police were already seeing results from prior positive actions which were taken before they made 'radical and substantial' changes to their application process which resulted in the disadvantage caused to Mr Furlong. Employers must therefore consider the context of any positive action taken and ask if the action is warranted in their particular circumstances.