The Pitfalls of Positive Discrimination

The Equality Act 2010 contains provisions permitting lawful "positive action". This principle is designed to apply where persons who share a protected characteristic suffer a disadvantage, have particular needs or are disproportionately under-represented in a particular job.

In certain circumstances it permits employers to assist protected groups by taking positive action to address these problems, without the risk of a discrimination claim brought by people without the relevant protected characteristics. It is therefore a limited exception to the prohibition on discrimination in employment.

Employers are not obliged to use positive action however one particular area when this principle is most often utilised is in recruitment and promotion situations.

The Equality Act makes clear that the provisions of positive action can only be used if the candidates to be recruited or promoted are equally as qualified and any positive action must be proportionate. This provision has been the cause of some confusion as demonstrated in the recent case of Furlong v Chief Constable of Cheshire Constabulary.

In this particular case, Cheshire Police were found to have discriminated against a white heterosexual male who had applied to join the force. Mr Furlong excelled during the interview process and was informed that he "could not have done anymore". However, he did not secure a position and lost out to other candidates.

He pursued an Employment Tribunal claim on the grounds that Cheshire Police had discriminated against him in relation to sexual orientation, race and sex. The Tribunal ruled that Cheshire Police had used positive action to take steps to boost the diversity of their workforce; however in a discriminatory way. In particular the police force imposed an artificially low threshold - candidates were assigned a pass or fail rather than any score which would have distinguished the candidates and clearly identified a tie-breaker situation thus permitting positive action. The Tribunal held this was an inadequate way to assess candidates and did not distinguish between candidates who were equally qualified for the role.

This is the first reported case of its kind in the UK and Mr Furlong's lawyers argued that he had been denied his dream job because he was a white, heterosexual male.

Whilst the case recognised that positive action is an important tool to support a diverse workforce that reflects the communities within which we live, on this occasion Cheshire Police had applied positive action unlawfully. The Tribunal, after hearing four days of evidence, reached the conclusion that whilst positive action can be used to ensure greater diversity it should only be applied to distinguish between candidates who are all equally well qualified for the role i.e. in tie-break situations.

Of note was that Cheshire Police was among a number of forces criticised in 2015 for having no black officers, unfortunately on this occasion the employer went beyond the remit of acceptable measures in applying positive action.

More generally this case highlights the importance of ensuring there are clear, objective and transparent procedures in place when scoring and selecting candidates for employment or promotion. Such contemporary evidence is vital if discrimination is alleged in order to demonstrate a fair and non-discriminatory process.

Following the abolition of tribunal fees, we have noted an increase in claims from job applicants alleging some form of discrimination as to why they did not secure employment. It is therefore important for employers ensure they follow a fair process and if challenged, can show a legitimate reason as to why the job applicant did not secure the role.

This article is for general guidance only. It provides useful information in a concise form. Action should not be taken without obtaining specific legal advice.