London is one of the most ethnically diverse and multi-cultural cities in the world. The latest census data shows that London’s population is 40% minority ethnic, yet recent statistics indicate that 9 out of 10 Metropolitan police officers are white. In essence, the police officers who are serving London do not represent the diverse ethnic makeup of Londoners themselves.
Recent press reports indicate that Scotland Yard has been in discussions with the Government about changing the law to boost the recruitment of ethnic minorities in London’s police force. The Metropolitan Police Assistant Commissioner, Simon Byrne, has said that the plans the Met is examining would mean that it “could only recruit, in very broad terms, a white officer if you can recruit a black or minority ethnic person at the same time”. Met chiefs are also said to be interested in replicating the statutory model that was used to reform the ranks of policing in Northern Ireland, which saw one Catholic officer recruited for every Protestant.
The Equality Act 2010 already permits positive action in recruitment and promotion to a very limited extent. Where an employer reasonably thinks that people with a particular characteristic are disadvantaged or that their participation in an activity is disproportionately low (in this case, the scarcity of non-white men and women in the police force) it can treat a person with the relevant characteristic more favourably than others in recruitment or promotion, as long as (a) the person with the relevant characteristic is “as qualified as” those others, and (b) it does not have a blanket policy of automatically treating people who share a protected characteristic better than those who do not have it. In other words, all other things being equal, you can recruit or promote the one who best helps your diversity statistics.
The meaning of “as qualified as” is a thorny issue as it is not defined in the legislation, and because of the difficulty of applying what is inevitably a partly subjective test. After all, it is highly unlikely that any two candidates will have exactly the same type of qualifications and relevant experience. Have you ever reached the end of recruitment exercise to discover that you have two candidates and genuinely no means of saying that one is better than the other?
It should also be noted that an employer is under no obligation to invoke the positive action provisions and can choose to take no such action at all. Employers have, with good reason, been wary of using the provisions as currently drafted, as there is a real possibility of their facing litigation by disappointed candidates claiming that they were better “qualified”, and challenging the employer to prove that they were not. A hire made under those positive action rules is after all clearly and deliberately made on racial or gender grounds, and therefore the employer is left wide open to a claim if the essential pre-requisite of the candidates being “as qualified as “ each other is not satisfied.
Mr Byrne’s comments indicate that he would like the Government to go much further and change the law so that a white police man or woman could only be recruited if a black or minority ethnic man or woman were recruited at the same time. It remains to be seen whether the Government believes that compulsory positive discrimination is the right way forward for the police. The Met has had a very mixed press on race equality issues for some time but there must be a risk that a measure of this sort would do little to address the dearth of ethnic minority applicants in the first place, and that it would create an unhelpful perception that some candidates were hired on grounds of their colour and not necessarily on merit. A brave attempt, therefore, but perhaps tackling this very important and worthy aim from the wrong end?