Misapplication of positive action principles in recruitment may cause direct discrimination

Misapplication of positive action principles in recruitment may cause direct discrimination

Misapplication of positive action principles in recruitment may cause direct discrimination

A white, male, heterosexual applicant has won his tribunal claim for direct discrimination against Cheshire Police because they had taken unjustified positive action in preferring applicants with protected characteristics.

Positive Action

UK equality legislation permits positive action measures to be applied in a recruitment process if an employer reasonably thinks that either:

  1. people with protected characteristics suffer a disadvantage connected to that characteristic; or
  2. participation in that activity by persons who share a protected characteristic is disproportionately low.

If so, an employer can treat applicants with protected characteristics more favourably than those without, as long as they are as qualified as the non-protected candidates. Further, an employer must show that it does not have a policy of more favourable treatment for people with protected characteristics in connection with recruitment or promotion.

Facts

Mr Furlong applied for a position as a police constable with Cheshire Constabulary (“CC”) and progressed through the first two stages of the recruitment process. 126 other applicants also reached the third interview stage, where CC applied positive action by first appointing candidates with protected characteristics, including LGBT, BAME and female applicants, to the role before selecting from the pool of remaining candidates. Mr Furlong, who had no protected characteristics, was not offered a job. He brought claims of direct discrimination against CC on the grounds of sexual orientation, race and sex.

Decision

At tribunal, CC provided “a plethora of evidence” showing the underrepresentation of LGBT, BAME and female officers in the police force, and referred to its extensive Equality and Diversity programme as evidence of the need to promote inclusivity across the constabulary. The tribunal acknowledged the legitimate aim of improving minority representation, but found that CC had misapplied positive action principles, as the legislation permits their use only as a “tie-breaker” between two candidates of equal merit. The tribunal found that CC had instead “obtained and ignored qualitative data” about all candidates throughout the process and then applied an “artificially low threshold” in choosing to deem all 127 candidates equal at the interview stage.

Further, an assessment of equal merit must be underpinned by a demonstrable structure and methodology, whereas the tribunal held that CC had applied a “policy” of preferring candidates with protected characteristics. The tribunal found that, as he performed well at interview, Mr Furlong would have been offered the job but for CC’s incorrect application of positive action principles. As such, his claims for direct discrimination succeeded.

Comment

In this case, the tribunal noted that improvements in minority representation had been realised by CC through other positive action initiatives and, as such, applying a pass/fail approach to the recruitment process was found not to be “reasonably necessary”. This raises questions as to whether employers who incorrectly apply positive action principles in one area of their business are more likely to be penalised where their inclusivity initiatives in other areas have been successful.

Despite a growing awareness of the need to make workforces more diverse and inclusive, positive action principles remain challenging for employers to apply in recruitment processes and are often avoided due to the perceived difficulty in demonstrating that two candidates are truly comparable. Employers intending to apply positive action principles would be prudent to ensure that any assessments of equal merit are supported by an objective methodology.

Contact our experts for further advice

View profile for Kate MaguireKate Maguire

Search our site