Positive Discrimination

The employment tribunal decision in Furlong v The Chief Constable of Cheshire Police  reminds employers that the ‘tie-breaker’ exemption should not be used as a blanket policy to favour underrepresented groups with shared protected characteristics in a recruitment selection process. Doing so would amount to unlawful discrimination under the Equality Act 2010.

In this case, a well-intentioned police force strayed from lawful positive action into unlawful positive discrimination when it sought to increase diversity in the workplace. Mr Fulton (a White heterosexual male) who had applied unsuccessfully for a job claimed that he had been treated unfavourably because of those characteristics of his.

Instead of using positive action in a tie-break situation between applicants, the differences between candidates were ignored. Numerous candidates who were not white, heterosexual or male were deemed by the Police to be equally qualified. On this basis, Cheshire Police preferred other candidates in the belief it was effecting positive action and so doing the right thing. The Employment Tribunal disagreed and upheld Furlong’s claim for direct discrimination. The Employment Tribunal confirmed that the employer’s assessment of equally qualified must be a detailed, reasoned and individual one and not simply based on a blanket deeming or broad equivalence.

Guidance from the Government Equality Office, considered by the Employment Tribunal, states that it would be lawful for a Police Service to give preferential treatment to candidates from (for example) underrepresented ethic minority backgrounds. This is provided that the comparative merits of other candidates are also taken into consideration.

When considering what is meant by ‘as qualified’, the Tribunal took into account overall ability, competence and professional experience, together with any relevant formal or academic qualification as well as any other qualities required to carry out the particular job. Although the Tribunal accepted that there was a legitimate aim in attempting to increase the representation of minority groups, the Tribunal did not accept that all the successful candidates were as qualified as some of the unsuccessful candidates. The Tribunal confirmed that positive action should be used as a tie-breaker to differentiate candidates who have, for example, obtained the same score in a quantitative assessment process.

Whilst the Police Service tried to rely on the argument that this was a legitimate aim of increasing diversity in the workforce, Mr Furlong did not dispute that this was a legitimate aim. However, he claimed that the actions taken by the Police Service had not been proportionate. The Tribunal pointed to the need for an objective balance to be struck between the discriminatory effect and the need it is seeking to address. Importantly, the Tribunal noted that the decision making process did not take into account the individual circumstances of each candidate.

Furthermore, there was a need for the Police Service to show that their actions had been reasonably necessary. The Tribunal ruled that this had not been proportionate, as the knock-on effect of discontentment and disillusionment may lead to a lack of confidence in the ability of appointees for the role of police officer. In addition to this, the police force as a whole were already having some success with diversifying recruitment, following earlier measures that had been put in place. The Tribunal concluded that this coupled with the potential for a lack of faith in police officers’ ability, was not in the public interest and therefore the steps taken by the police force were not justified.

From the above case, it is clear that when it comes to actively promoting diversity, employers face a balancing act in sourcing a diverse range of talent with their obligations under the Equality Act 2010. In order to understand the difference between what steps are permissible against those which are not, you can join our webinar on positive discrimination which will takes place on 17 November 2022.

To register please register here www.machins.co.uk/events/positive-discrimination/