Facts of the case
Mr Furlong was a white, heterosexual male without a disability who interviewed for a job with Cheshire Police (the Force) but failed to gain employment.
At the time of the interview, the Force had underrepresentation across a range of protected characteristics and wished to diversify its workforce.
The Force implemented a new policy for its 2017/2018 intake of police constables, where candidates took part in an assessment, which they either passed or failed. The Force then offered jobs to all female, black and minority ethnic, LGBT and disabled candidates who passed ahead of other candidates (who had also passed but who did not fall within these underrepresented groups).
Mr Furlong claimed in an Employment Tribunal that the Force had discriminated against him as it had unlawfully treated candidates with protected characteristics more favourably, despite the fact that the other candidates were better qualified.
The law on positive action in recruitment
Positive action in recruitment can only be used in a "tie-break" situation in which two candidates are equally qualified. The Equality Act 2010 allows positive action if all of the following conditions are met:
- The employer reasonably thinks the protected group is underrepresented.
- Both the person with and the person without the protected characteristic are equally qualified.
- The employer does not have a policy of treating people who share the protected characteristic more favourably in connection with recruitment or promotion than persons who do not have that protected characteristic.
- Taking the action is a proportionate means of overcoming or minimising disadvantage in respect of a person with a protected characteristic.
For example, guidance from the Government Equalities Office states that it would be unlawful direct discrimination to offer a job to a woman who is underrepresented in a company's workforce where there was a male candidate who was more qualified.
When assessing whether positive action is "proportionate" the guidance states that an employer must consider the extent to which people with a protected characteristic are underrepresented against the impact that the action may have on other people.
Employment Tribunal ruling
The Force classified all candidates as "deemed equal" if they achieved a pass in the assessment. However, the Tribunal decided that this was not fair as those candidates with very high pass marks were treated in the same way as those who achieved weak pass marks. A total of 127 candidates were "deemed equal", a number which the Tribunal found difficult to accept.
The Tribunal found that having a blanket approach and applying positive action so broadly across a range of protected characteristics was not proportionate. The Force had not conducted a thorough enough review of how past action had affected the Force or conducted an exercise to assess how the positive action would affect those without protected characteristics.
The Tribunal concluded that the Force's approach could not be classified as positive action under the Equality Act 2010 as it failed to satisfy three of the conditions above. The "deemed equal" methodology meant that candidates were not truly equal (this failed limb 2). This methodology was viewed as a policy (failing limb 3) which was disproportionate (failing limb 4).
The Tribunal concluded that Mr Furlong had scored well during the recruitment process and, had the Force used a merit-based system, Mr Furlong would have received a job. Therefore, he had been directly discriminated against on the grounds of race, sex and sexual orientation.
This decision is a clear reminder to employers that positive action in recruitment should only be used in a true tie-break scenario, where candidates are equal.
Employers must also keep in mind that the methods they adopt in relation to improving equality must be proportionate to the level of underrepresentation that they are aiming to address. They must be mindful that the situation which the action is trying to remedy may change. Therefore, the effect that action is having on their workforce should be monitored.