At a glance

• In this case the Employment Tribunal (ET) rejected an argument that West Yorkshire Police should have exercised positive action powers in the Equality Act (EqA) to recruit Mr Altaf as a police driver trainer instead of recruiting only white British non-Muslim candidates.
• The ET highlighted that section 159 of the EqA allows positive action in recruitment but does not require it. Failing to treat Mr Altaf more favourably than others was not indicative of bias against people with his race or religion, or less favourable treatment.
• Mr Atlaf’s claim of discrimination because of race and/or religion or belief failed.
• However, the ET did say said that addressing bias should remain a priority and employers may consider it appropriate to make full use of positive action initiatives to reassure applicants of their commitment to improving EDI.

Background

Mr Altaf was British Pakistani and Muslim. He applied for a position as a police driver trainer with West Yorkshire Police. He came seventh out of a total of 92 applicants for the post. There were six successful candidates, all of whom were white British and non-Muslim. Mr Altaf was one point away from being joint sixth in the recruitment process.

Mr Altaf argued that the decision not to offer him employment was because of his race and/or religion or perceived religion. At the heart of the dispute was whether Mr Altaf was scored less well than he deserved and/or whether the recruitment process was tainted with discrimination, in particular because of unconscious bias against Mr Altaf. Amongst the factors which Mr Altaf said pointed to discrimination was that he could have been employed under the positive action in recruitment provisions at  section 159 of the EqA, but that West Yorkshire Police chose not to apply those provisions.

West Yorkshire Police acknowledged that positive action was used in some circumstances and in College of Policing documents it was clearly identified as a useful tool for improving diversity.  It was unable to explain why its positive action initiatives were not applied in the driver training department nor why positive action was not used in Mr Altaf’s application. However, West Yorkshire Police argued that the fact that it could or should apply positive action measures did not mean that it treated Mr Altaf less favourably by not adopting positive action.

The outcome

The ET agreed that where statistics show a disparity between the number of BAME employees and officers and the number of BAME members of the population at large, positive action measures may well be appropriate.  However, it found that section 159 of the EqA is a provision which allows for positive action, it does not require it. The ET said that it could not conclude that the failure to treat Mr Altaf more favourably than others (by deploying positive action) was indicative of any less favourable treatment or bias against people with his protected characteristics.

Ultimately the ET concluded that the reason Mr Altaf was not offered the job was because he did less well at interview and not because of his race or religion. Based on his performance at interview he would still not have been offered the job even if he had been white British.

Mr Altaf’s direct discrimination claim therefore failed.

The ET did nevertheless comment that, in view of the statistics on diversity presented to it in the case, addressing racial and/or religious bias (conscious or unconscious) should remain a priority for West Yorkshire Police.  The ET did not have the power to make recommendations, but did make it clear that it commended initiatives for positive action and regular training on cognitive and implicit bias. It further commented that West Yorkshire Police may consider that it would be appropriate to consider making use of section 159 in all recruitment exercises it undertakes, and to keep a clear record of its decisions in that regard and the reasons for them, to reassure BAME applicants that it treats its obligations to improve diversity as a priority.

“Although this case emphasises the voluntary nature of positive action, the ET also recognised that addressing bias should remain a priority and employers may consider it appropriate to use positive action to improve Equality, Diversity and Inclusion (EDI).”

What does this mean for employers?

This case reiterates the fact that utilising the positive action powers under the EqA is voluntary and employers are not required to take positive action. The EqA merely allows an employer to take positive action in some circumstances if it wishes to. Nevertheless, taking positive action to improve EDI can bring many benefits and employers may consider it appropriate to make use of the positive action initiatives where they can.

Altaf v Chief Constable of West Yorkshire Police (ET/1806863/18)