Employers may increasingly be considering positive action to improve their diversity or gender pay gap. The caution needed when considering positive action is highlighted by a recent tribunal judgment, Furlong v Chief Constable of Cheshire Police, the first reported case on the relevant Equality Act provisions. The Equality Act allows an employer to prefer a job candidate from a protected minority provided it reasonably thinks the protected group is under-represented, the favoured candidate is of equal merit to the other candidate (ie, a ‘tie-breaker’ situation), the more favourable treatment is proportionate, and there is no ‘policy’ of preferring the protected group.

The Cheshire Police Force had reasonably identified that female, BME, LGBT and disabled persons were under-represented protected groups. It sought to appoint from these groups by lowering the ‘pass’ threshold at the assessment stage such that 127 candidates passed and were then deemed to be of ‘equal merit’, enabling the employer to give priority to those from the protected groups.

The tribunal held that there were clearly differences between the assessed merits of the 127 candidates and it was not a ‘tie-breaker’ situation. The employer had adopted a policy of preferring protected group candidates by ignoring the qualitative assessment that had been done, leading to unlawful discrimination against white, male, heterosexual claimants without a disability who would otherwise have been appointed.

The tribunal also considered that the treatment was not proportionate to the employer’s aim of improving diversity, on the basis that it should have waited longer to establish the impact of recent diversity and inclusion programmes; a blanket approach of this scale was disproportionate. The employer should not have imposed artificially low thresholds and positive action should have been restricted to a smaller exercise in the first place.

The case makes clear that employers will struggle to suggest that a large number of candidates can all be of ‘equal merit’, particularly if qualitative assessments have actually awarded individuals different scores. It also emphasises the need to monitor and analyse other diversity initiatives before taking this step, in order to demonstrate proportionality. Employers considering positive action should review the guidance in the EHRC’s Code and Supplement (and in particular the recommendation for a detailed action plan at paragraph 12.36). Also bear in mind that in situations other than recruitment and promotion, lawful positive action is limited to proportionate action to train and encourage under-represented protected groups, to overcome disadvantage or to meet specific needs.