Written by Brabners LLP
Often, when we think of discrimination in the employment context, we associate this with employers taking steps to avoid discrimination taking place. Although, when attempting to diversify a workforce, some employers use the concept of positive discrimination in the recruitment process – they will treat one candidate for the job more favourably than another due to a protected characteristic of theirs (for example, due to race, sex, disability etc.). This is a potential example of positive discrimination and shows employers actively taking steps to ensure that their workforce reflects the diverse society that we live in today.
However, using this method should be approached with caution and only be used where it is proper to do so. In the recent case of M Furlong v The Chief Constable of Cheshire Police, an employment tribunal confirmed that an employer will need to show that candidates are equally qualified before applying a ‘tie-break’ of positive discrimination to decide between job applicants. Read on for more details and tips for dealing with these tricky situations!
Positive discrimination – what exactly is it?
Positive discrimination can be described as choosing or favouring a person because of a protected characteristic of theirs: for example, favouring someone because they are a particular sex. Generally, this is unlawful but there is an exception under section 159 of the Equality Act 2010 allowing employers to positively discriminate in certain circumstances.
The law here outlines that employers are permitted to treat a person with a protected characteristic (e.g age, race, sex etc) more favourably than a person without one in the recruitment or promotion process if these four requirements are met:
- the employer reasonably thinks that people with the protected characteristic suffer a disadvantage in connection with the characteristic or that participation in an activity by persons with the protected characteristic is disproportionately low (for example, a construction firm may find it difficult to recruit female employees and have a disproportionately low amount of female employees) ;
- the action is taken with the aim of enabling or encouraging the person with the characteristic to overcome or minimise the disadvantage or participate in the activity;
- the employee with the protected characteristic is as qualified as the other employee; and finally…
- that the employer does not have a policy of treating people who have that protected characteristic more favourably than those who do not.
It is evident that there are several steps for employers to satisfy in order to positively discriminate. This is to ensure that employers are hiring based on individual talent and only using positive discrimination where nothing else would assist in making the decision.
The Furlong Case – Facts
In the specific case of M Furlong v The Chief Constable of Cheshire Police, the Cheshire police undertook a recruitment process to hire new police constables. There was an application form, an assessment centre, interview, online tests and written and interactive exercises. A pass mark of 50% had to be attained for an applicant to move on to the next stage of the process, which was a competency based interview on personal qualities. After this, the Cheshire police decided to use ‘positive discrimination’ to choose between candidates, because they noted that all of the candidates left had passed the other stages.
One of the candidates who left at this stage was Mr Furlong who was a white, heterosexual male who did not have a disability. Although he had passed the interview stage, he was then told that his application was put on hold, because there were not enough vacancies for all those who had passed to the next stage. As a result of this, he then claimed that he had been discriminated against on the grounds of sexual orientation, race and sex.
Mr Furlong asserted that the Cheshire Police had acted unlawfully, because the candidates with the protected characteristics who had been selected for the job roles were not as qualified as himself. In response, the Cheshire Police said that it had followed the correct procedure and applied the relevant measures as allowed by the Equality Act.
In its judgment, the Employment Tribunal agreed with Mr Furlong and he succeeded with all of his claims. When assessing the evidence (including the interview forms, comments and test results), the Tribunal said it was clear that not all of the candidates were at an equal level and therefore it was not suitable for the Cheshire Police to have used section 159 of the Equality Act to decide between candidates.
The Tribunal noted that there were 127 candidates remaining and that it would be a fallacy to conclude at this stage that all candidates were of equal merit. The Tribunal found that the actions of Cheshire Police were not justified and did not satisfy the legal test outlined above.
The case above is the first reported case about positive action on such a large scale. The outcome may seem harsh to some, given that the Cheshire Police were trying to help those with certain protected characteristics. However, a balance needs to be struck between those persons and others in the process who may be disadvantaged if the positive discrimination requirements are not met.
The case of Furlong shows us that all four of the requirements mentioned in the Equality Act need to be met before employers are lawfully permitted to positively discriminate. Indeed, one of the key requirements is to show that candidates are equally qualified.
This case acts as a reminder that employers must think carefully about whether there is a real genuine ‘tie-break’ between candidates. In practical terms, the more candidates there are then the trickier it may be to show this and a careful analysis should be done of the applicants remaining. Companies should keep interview notes, recruitment documentation and the results of any tests undertaken to help them evidence the position.
In today’s society, it is crucial to ensure that we have inclusive and diverse workforces and this is a positive aim to have. Companies just need to keep in mind all of the steps outlined in the Equality Act and ensure these requirements are met.
This bulletin is for general guidance purposes only and should not be used for any other purpose. Brabners is a Limited Liability Partnership