Employment Tribunal decides its first case on the use of Positive Action under s.159 Equality Act 2010.

The Employment Tribunal (‘ET’), in the case of Mr M Furlong v Chief Constable of Cheshire Police, has unanimously found that a police force’s recruitment process directly discriminated against a white heterosexual, male applicant when attempting to boost recruitment from unrepresented groups under s.159 Equality Act 2010.

s.159 permits employers to treat a candidate with a protected characteristic more favourably in connection with recruitment or promotion than another person, provided the employer reasonably thinks that persons who share the protected characteristic suffer a disadvantage connected to that characteristic or that participation in that activity who share the protected characteristic are disproportionately low.

The Employer must show that;

• the person with the protected characteristic is ‘as qualified’ as the non-protected candidates;
• it does not have a policy of treating persons who share the protected characteristic more favourably in connection with recruitment or promotion than persons who do not share it; and
• taking the action in question is a proportionate means of achieving a legitimate aim.

Mr Furlong (‘the Claimant’), a white, heterosexual male without a disability applied for a position as a police constable with Cheshire Constabulary (‘the Respondent’).

The recruitment process comprised three stages: an application form to check candidate eligibility; a ‘sift’ stage comprising a competency interview and various written and interactive exercises; and finally an interview stage for all candidates who had passed the ‘sift’.

Approximately 127 candidates progressed to the interview stage where the Respondent applied ‘positive action’, appointing first any candidates with protected characteristics before the remaining applicants. Despite passing the ‘sift’ and performing well, the Claimant did not secure an appointment.

The Claimant brought claims of direct discrimination on the grounds of sexual orientation, race and sex on the basis that the Respondent had treated candidates with protected characteristics more favourably than himself, when they were less qualified.

Despite the Respondent alleging that it had lawfully applied positive action measures, and accepting the existence of a legitimate aim, the ET nonetheless found that s.159 was misapplied.

The ET contended that the provisions are to be used in ‘tie-break’ situations when choosing between candidates of equal merit, something the Respondent failed to do. Moreover, the Respondent had obtained and ignored qualitative data when assessing if the candidates were ‘as qualified’ as each other despite the evaluation forms completed by the interviewers clearly showing that some candidates were stronger than others.

Accordingly, the ET held that the Claimant’s claim succeeds, and was persuaded that, but for the inappropriately broad application of positive action, the Claimant would have secured a position.

Although this has not yet been taken further than the ET, it is useful for Employers to consider the circumstances in which candidates who have protected characteristics can be selected for roles over those candidates who don’t.

The provisions of s.159 are rarely used given the complexity in showing that two or more candidates are truly ‘as qualified’ as another, but this case brings the positive action interventions to the spotlight.

Employers should be mindful of the risks but are encouraged to develop a wider understanding of this area and actively encourage diversity in the workplace.