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Positive discrimination – can an employer go too far?

The introduction of gender pay gap reporting has encouraged many employers to take steps to improve diversity within their workforce. The Equality Act 2010 allows two types of positive discrimination – general positive action and the so-called tie-breaker provisions.

Section 158 allows employers to take steps to enable or encourage protected groups if they reasonably believe them to be under-represented and the steps taken are proportionate.

Section 159 relates to recruitment and promotion. It allows an employer to prefer a candidate from a protected group if:

  • The employer reasonably thinks that the protected group is under-represented;
  • The favoured candidate is just as qualified as the other candidate; and
  • The employer does not have a policy in place of treating the protected group more favourably in recruitment and promotion.

The lack of diversity within the police force has been well documented. Cheshire police force found that despite their efforts to increase diversity, progress was slow. They went from employing no black officers in 2015 to recruiting 3 individuals by 2017.

The force decided to take more radical action and implemented a programme for its 2018 intake of police constables. Candidates were scored at an assessment centre and interviewed at which point they either passed or failed. The force offered jobs to all female, black and minority ethnicity, LGBTQ or disabled candidates who passed ahead of all other candidates who passed.

There were more passed candidates than there were vacancies so Mr Furlong (a white, heterosexual male) was not offered a post.

He brought a tribunal claim alleging direct discrimination on the grounds of sexual orientation, race and sex. The Employment tribunal found that Cheshire’s actions went further than the Equality Act allowed them to. The protected groups were all under represented but the force has incorrectly treated all 127 passed candidates as being of equal merit. The data showed that the candidates who passed actually varied in quality.

The tribunal also commented that the police force should have waited longer to see the effects of other diversity and inclusion programmes and that the blanket approach applied by Cheshire was disproportionate.

The tribunal was satisfied that Mr Furlong would have been recruited if the force had used a merit-based approach and that he had been directly discriminated against because of his sexual orientation, race and sex.

Employers need to continue to take steps to improve diversity, but the tie-breaker provisions should only be used to select between candidates who are genuinely equal in terms of merit and action needs to be proportionate.

If you require further information, please get in touch.

Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.

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