Positive action is where an employer treats someone with a protected characteristic more favourably than someone who does not share that protected characteristic. It is an important mechanism to encourage individuals with protected characteristics into professions in which they are underrepresented. It is legislated for in the Equality Act 2010, and it is only permitted in limited circumstances where an employer can justify its application.

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.

Employers must also be able to illustrate that they reasonably believe that persons who share a protected characteristic suffer a disadvantage that is connected to that protected characteristic, and that participation in an activity (or profession) by persons who share a protected characteristic is disproportionately low.

Positive action is particularly prevalent in the public sector as illustrated by a case published today, Mr M Furlong v The Chief Constable of Cheshire Police [2018] UKET. Mr Furlong (a white, heterosexual, non-disabled male) applied for a position as a police constable in the Cheshire Constabulary. Although successfully completing the assessment centre and interview stages, Mr Furlong was told he was unsuccessful in his application. He believed this was because Cheshire Police had treated other candidates with protected characteristics more favourably during the interview process than him, and that those candidates were not as well qualified. Mr Furlong then went on to submit a claim for direct sex discrimination on the grounds of sexual orientation, race, and sex.

Cheshire Police’s defence was that they had applied a positive action measure in line with the Equality Act 2010, to increase diversification in their workforce. They went on to disclose a vast number of statistics one of which claimed that there were 127 candidates that were ‘of equal merit’ at the time Mr Furlong was interviewed. The Tribunal was required to analyse a plethora of evidence in the context of the requirements discussed above.

Mr Furlong’s claim was successful, and there was a clear finding of direct discrimination.

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

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

(b) Cheshire Police had not proven that they had reasonable belief that there was a particular barrier to candidates with protected characteristics (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, Cheshire Police’s blanket approach of positive discrimination was not considered a proportionate means of achieving a legitimate aim, and they 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’.

Diversification is an essential part of ensuring equality in many sectors, however, in this case, Cheshire Police 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.

To talk to our employment team about any issues raised in this blog please do not hesitate to call 0345 872 6666.

This article is for general guidance only and should not be used for any other purpose. It does not constitute and should not be relied upon as legal advice.