When can an employer take ‘positive action’ in discrimination?

The Employment Tribunal recently reached a decision about Positive Action in the case of Mr M Furlong v The Chief Constable of Cheshire Police [2018].

This case is about a relatively little used, but an often controversial, legal right employers can adopt to take positive steps to redress under representation in their workplaces.

The Law

Positive action is where an employer treats someone with a protected characteristic more favourably than someone who does not share that protected characteristic. It has been viewed as an important mechanism to encourage individuals with protected characteristics into professions in which they are underrepresented.

Protected Characteristics are:

•  age
• disability
• gender reassignment
• marriage and civil partnership
• pregnancy and maternity
• race
• religion or belief
• sex
• sexual orientation

Positive action is legislated for in the Equality Act 2010 but is only permitted in limited circumstances where an employer can justify its application.
Positive action is particularly prevalent in the public sector as illustrated by the recent case of Mr M Furlong v The Chief Constable of Cheshire Police [2018].
The laws around this are complex and the case demonstrates how easy is to make mistakes.

The Facts

Mr Furlong applied to be a police officer and was invited to the Police Assessment Centre. He was in his early twenties, white and heterosexual. He passed all stages in the recruitment process but was told he had been unsuccessful because there were not enough vacancies for everyone that had passed.

The force treated all candidates who had achieved a pass mark as being of “equal merit”. Mr Furlong was not offered a job despite being one of the highest scoring candidates, for the reason that the force wanted to redress its lack of diversity. Instead, the force offered vacancies to candidates from groups they assessed as being in the minority (in terms of numbers) or under-represented in the force. This was in line with its positive action plan to recruit and retain BME, female, LGBT and disabled candidates.

It was discovered that of the 127 candidates who had passed the interview, 85 were told they would be considered for the next intake of officers while priority was given to those from the underrepresented groups the force wanted to attract.

Mr Furlong has successfully claimed that he had suffered direct discrimination because of his sex, race and sexual orientation and he will receive compensation which will be determined at another hearing if the parties cannot reach an agreement on the amount of compensation before that hearing.

The tribunal accepted that the force was trying to redress the under representation of certain protected groups but was very critical of the process it had followed. The tribunal examined the application forms, interview notes and evaluations of the 127 candidates who had passed and said it was a “fallacy” to describe the different candidates as being equal.

The evidence showed that some candidates, including Mr Furlong, were clearly stronger than others and had scored higher during the interview. The tribunal said the threshold for passing the evaluation/interview tests to be considered for recruitment, had been set at an “artificially low” level and that it was clear the candidates were not equally qualified, and this led to the error.

How to take positive action

If this case hasn’t put you off and you want to take positive action, the you should read on.

It is well established and agreed by most that businesses with diversity, such as having a healthy balance of men; women and those of ethnic backgrounds or with disabilities, will often outperform their competitors.

Nevertheless, strict rules apply if you want to encourage recruitment or promotion of under-represented groups and this is on the balance of probabilities, correct.
To explain this, we assume that a business wants to have more women in senior roles.

In the context of recruitment, if an employer treats someone more favourably because of a protected characteristic (for example gender or race), they must also be able to prove that:

(a) the individual with the protected characteristic is as qualified to be recruited as someone who does not share that protected characteristic;

(b) that there is not a routine policy in place of treating persons who share the protected characteristic more favourably than persons who do not share it; and

(c) that the positive action is a proportionate means of achieving a legitimate aim.

Therefore, a business will only be able to take positive action to encourage women if one of the following three grounds applies:

1. Women are disadvantaged in some way resulting in fewer employment opportunities at this level.

You don’t usually need sophisticated statistical data or research and could instead look at the numbers of senior leaders in your business.

2.  Women have different needs not shared by other groups.

This does not mean that their needs have to be totally unique though.

3.  There are a disproportionately low number of women in, for example, senior roles.

You will need reliable evidence to demonstrate this, that compares your business with national, local or industry specific data.

4.   Any action you take to redress the situation must be proportionate.

This means that it shouldn’t go any further than necessary to overcome or reduce the disadvantage or under representation. In other words, if there is another less discriminatory way to achieve the same objective, you should take it. Working out whether what you are doing is proportionate involves weighing up the seriousness of the disadvantage to women against the impact on men.

If the answer to any of those questions is no, positive action may not be lawful in the circumstances, and the old adage about good intentions could prove true in an expensive way in the event of a claim.

Mr Furlong was successful because the force had failed to satisfy the legal requirements when exercising positive action during their recruitment process. In particular:

(a) they had applied a policy of positively discriminating during their recruitment process in large volume which could not be considered reasonably necessary based on the evidence.

(b) they had not proven that they had reasonable belief that there was a particular barrier to candidates with protected characteristics. For example, recent statistics suggested that by the interview stage there was 100% recruitment for BME candidates, and 73% for LGBT and female candidates.

(c) Although the Tribunal accepted there is a need for more diversity in the Police, the blanket approach of positive discrimination was not considered a proportionate means of achieving a legitimate aim, and the force had not considered the impact of the measures that they had in place.

(d) The Tribunal did not consider it was possible that 127 people could be ‘as qualified as each other’.

The Future

Employers may be discouraged by this decision and perhaps made more wary of trying to address a lack of diversity in their recruitment campaigns.
However, this case hasn’t made it more difficult to take positive action; it has merely confirmed that it will be allowed only in particular circumstances and when handled well by the employer.

Treating job applicants fairly should of course be one of the cornerstones of any recruitment process. Most employers will know that in the vast majority of cases they shouldn’t make decisions based on gender, race, religion, age or any other protected characteristics, unless the job calls for that characteristic to be present (e.g. a support post in a women’s refuge).

This case will not stop some employers from attempting to address under-representation from certain groups by encouraging applications from those groups, and we trust that this was not the intention of the tribunal when making their ruling.

There are many ways to improve diversity in the workforce. Diversity may be improved for example by placing adverts in publications or websites that target ethnic minority or female applicants, in an attempt to achieve more balance in their workforce while some employers may go further still and give preference to the under-represented groups at the interview stage; as the force did in this case.

Regardless of the outcome of this case, diversification is an essential part of ensuring equality in many sectors but unfortunately, in this case, the force had not demonstrated the necessary legal justifications to apply positive action.

In making their decision, the Tribunal was guided by previous European case law, the Employment Statutory Code of Practice and the Equality and Human Rights Commission Code of Practice, but it is important to remember that each claim will turn on its own facts

Case Reference

Furlong and The Chief Constable of Cheshire Police

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