A Liverpool Employment Tribunal has found that the Cheshire Police Force acted unlawfully in a recruitment exercise for new police officers. The tie-breaker provisions of the Equality Act allow the selection of a candidate with a protected characteristic in preference to another candidate of equal merit as part of a legitimate positive action programme. Here, the police had filled vacancies with candidates with protected characteristics who were not of equal merit compared to other candidates. This led to direct discrimination against the white, heterosexual male claimant and was outside the scope of legitimate positive action. Although only a Tribunal decision, and so not binding in future cases, there have so far been no reported cases on the tie-breaker provisions.

Background

The "tie-breaker" provisions in the Equality Act apply in recruitment and promotion, and allow employers to prefer a candidate from a protected group over other candidates if:

  • the employer reasonably thinks that the protected group is under-represented (the representation issue)
  • the favoured candidate is just as qualified as the other candidate (the equal merit issue)
  • the more favourable treatment is proportionate (the proportionality issue)
  • the employer does not have a policy of treating that protected group more favourably in recruitment and promotion (the policy issue).

The Employment Tribunal decision

The decision concerns a recruitment exercise carried out by the Cheshire police for its early 2018 intake of new police officers. The process involved three stages:

  • a hard sift
  • an assessment centre
  • an interview

For previous intakes, the police had applied a scoring matrix. However, for this intake, candidates were simply "passed" or "failed" after the interview. All female, BME or LGBT or disabled candidates who passed were offered vacancies. Remaining vacancies were filled according to set criteria, including scores at the assessment centre. There were not enough vacancies for all those who passed, so some candidates were put "on hold" including the Claimant.

The Tribunal concluded that this approach was not protected by the tie-breaker provisions:

  • The police succeeded on the representation issue. It was reasonable to regard the protected groups as under-represented, so taking positive action was legitimate.
  • However, the main objection was the equal merit issue. The police's approach meant all 127 candidates who passed were deemed of equal merit. However, they were clearly not equal. There was plenty of material from stages two and three about the merits of each candidate. Although all 127 "passed" candidates were over the bar the police had set, this was an artificially low threshold. Some were clearly much stronger than others. There was evidence of some of the passes being weak.
  • The exercise also fell down on the proportionality issue. The Tribunal thought the police should have waited longer for the effects of recent diversity and inclusion programmes to take hold and that a blanket approach of this scale without any regard to the qualitative assessment of the protected candidates was disproportionate.
  • On the policy issue the Tribunal said "given the size of the exercise….the Tribunal concludes that this has all the hallmarks of a policy in that it was a strategic approach and blue print to get those with the three identified protected characteristics across the line first, ignoring qualitative assessment/evidence".

Comment

The boundaries of the tie-breaker provisions are unclear and the concepts of "equal merit" and "policy" are not well defined. The Tribunal did not analyse those concepts in detail, presumably because it regarded this programme as falling far outside of the boundaries. If the decision is appealed, we may have some further analysis of the rules from the Employment Appeal Tribunal.

More guidance would be helpful because employers are being encouraged to take up positive action measures as part of their initiatives to narrow the gender pay gap. Like the Cheshire police, many employers are finding that existing diversity initiatives and campaigns are not shifting the needle fast enough.

Note that the decision does not relate to the general "positive action" provisions in the Equality Act which allow employers to take proportionate steps to enable or encourage an underrepresented group, but not to treat them more favourably. However, the Tribunal's comments on proportionality and representation are potentially relevant to those provisions as well, since similar proportionality and under-representation tests apply.

Furlong v. Chief Constable of Cheshire Police, Employment Tribunal