An employment tribunal has found that a white heterosexual man suffered discrimination on the grounds of race, sex and sexual orientation when he was turned down for a job as a result of his employer's positive action plan which aimed to increase the number of BME, female, LGBT and disabled officers in its workforce.
Distinguishing positive action (lawful) from positive discrimination (unlawful)
Positive discrimination might involve offering a job to a candidate, not because they are the best candidate for the job, but merely because they possess a specific protected characteristic (for example race, gender, sexual orientation, disability). This is unlawful.
Positive action, on the other hand, can be lawful. The Equality Act provides for two types of positive action: "general positive action" and "positive action in recruitment and promotion". Many employers use general positive action fairly regularly to assist under-represented groups overcome disadvantages in the workplace. Examples include offering IT training to older workers, offering mentoring or targeted networking opportunities to female staff, inviting students from groups whose participation in the workplace is disproportionately low to spend a day at the company. The second form of positive action (recruitment and promotion) is used less often but was the subject of this case.
By way of background, positive action in recruitment and promotion is permitted where, for example, an employer reasonably believes that the number of individuals with a protected characteristic in a particular role within the workforce is disproportionately low. In those circumstances, the employer can treat those individuals more favourably in the recruitment or promotion process if:
- those individuals are equally qualified for the job
- the employer does not have a policy of treating those individuals more favourably in recruitment or promotion, and
- that such positive action is a proportionate means of achieving the aim of enabling those individuals to participate in that activity
Facts of this case
In this case, Mr Furlong applied for a position as a Police Constable in the Cheshire Police's (CP) 2017/18 recruitment process. Despite successfully completing the assessment centre stage and being told he had done well at interview, Mr Furlong was not offered a job. He subsequently brought a claim alleging that, at the interview stage, CP treated successful candidates with protected characteristics more favourably than him and that this was unlawful because they were offered a position even though they were less well qualified. He also said that CP had a policy of treating job applicants with protected characteristics more favourably in the recruitment process and this was not a proportionate means of achieving a legitimate aim.
After being identified in 2015 as one of four UK police forces that had no BME officers, CP subsequently adopted a positive action plan. Its aim in particular was to increase the number of BME and female officers, as well as LGBT and disabled officers, in its workforce.
CP's recruitment process for Police Constables had 3 stages: the initial stage involved questionnaires, the second stage was the Search Assessment Centre which included a number of written tests and a competency interview. Candidates who passed that stage progressed to a final interview.
CP applied their positive action plan at the end of the interview stage for the 2017/18 recruitment process. All candidates either passed or failed, and the 127 candidates who passed were regarded as of "equal merit" for being appointed to the role. These candidates were then selected on the following basis:
- Candidates who identified as having one of the protected characteristics of race, sex sexual orientation or disability
- Candidates who spoke English as a second language
- Candidates employed by CP in certain capacities
- The remaining vacancies were filled on the basis of the candidates' results from the second stage of the recruitment process, their Search Assessment Centre score.
The tribunal found that, in using a pass/fail mechanism to assess interview performance, there was an artificially low threshold for the recruitment exercise which meant a significant number of the candidates were "deemed equal". CP could then put their positive action recruitment plan into effect, even though the candidates were not equal. It also said that by reverting to selecting candidates on the basis of their Search Assessment Centre scores at stage 4 of the selection process, this undermined CP's position that the candidates were equal after the interview stage.
The tribunal also concluded that CP had a policy of treating individuals with protected characteristics more favourably in the recruitment process and although the aim was legitimate, imposing an artificially low threshold and not using a qualitative assessment of the candidates was not a proportionate response.
Practical points to take away from the case
This case does not deal with the "general positive action" exception which is often by employers to help and encourage under-represented groups to apply for jobs (such as by providing extra training or mentoring for those groups).
Rather, this case concerns "positive action in recruitment and promotion" and clearly illustrates the risks with adopting positive action initiatives for the purposes of selecting an individual for a new job or for a promotion.
Although employers must not adopt recruitment policies that routinely favour candidates with a certain protected characteristic, even if there is evidence of underrepresentation, they can have a routine policy of being prepared to use positive action where that is appropriate.
Care is needed in the recruitment and promotion process to ensure lawful positive action is taken rather than unlawful discrimination. For example, while setting targets to improve diversity at inception and at senior levels is acceptable, minimum race and gender quotas is not.
Positive action in recruitment and promotion can only be applied in a "tie break" situation. Employers must establish that the candidates are of equal merit by assessing them against a set of criteria such as ability, competence, qualifications and professional experience. But, certainly at more senior levels, a "tie break" situation is rarely seen. So relying on this runs the risk of a discrimination claim by the unsuccessful (white/ heterosexual/ male) candidate.