At a glance
- Furlong is the first reported Employment Tribunal case in England and Wales on the issue of positive action in recruitment under section 159 of the Equality Act 2010 (EqA).
- Mr Furlong was a white, heterosexual male who was unsuccessful in his application for the role of police constable in a recruitment exercise run by Cheshire Police. He brought claims of direct discrimination on the grounds of sexual orientation, race, and sex against Cheshire Police.
- Cheshire Police argued that they had lawfully applied the ‘positive action in recruitment measures under section 159 of the EqA to increase diversification in their workforce. Often known as the ‘tie-breaker’ provision.
- The Employment Tribunal (ET) found that the recruitment process in question at Cheshire Police did not satisfy the requirements set out in the positive action provisions at section 159 of the EqA.
- The ET found that, whilst aiming for a diverse population of new constables who were more representative of the community they served was a laudable aim, Cheshire Police had directly discriminated against Mr Furlong by deeming all candidates who had been successful at interview stage equal and then offering a role to those successful candidates with a protected characteristic in preference to him.
- The ET decision was particularly focused on what it found was an artificially low threshold to determine whether candidates were of equal merit.
Background
Cheshire Police were trying to develop a diverse workforce as it was underrepresented in terms of female, BME and LGBT officers. It decided to use positive action in a recruitment exercise for the role of police constable. Mr Furlong, a white, heterosexual male applied for one of the positions available. Candidates had to complete a three-stage recruitment process: an application form; an assessment centre and an interview for all those who had passed the previous stages. At the end of the interview stage candidates’ answers to questions were assessed and a simple pass/fail mechanism used to determine which candidates were successful at that stage, deeming all successful candidates from the interview stage equal. Jobs were then offered to all candidates who had passed the interview stage and identified a protected characteristic of female, BME, LGBT or disability ahead of other candidates.
Of the 182 interviewees, 127 passed the interview stage and were deemed equal. Mr Furlong was one of the 127 candidates who had passed the assessment centre and interview stage. However, there were not enough vacancies for all of the candidates who had passed and so some of them did not get offered a role, including Mr Furlong, in accordance with the approach of offering roles to those with a protected characteristic.
Mr Furlong brought claims of direct discrimination on the grounds of sexual orientation, race, and sex.
Cheshire Police sought to rely on the positive action in recruitment provisions under the EqA. The ET looked at the following requirements under section 149 in particular:
- The requirement for the employer to reasonably think that the protected group is under-represented;
- The requirement for the favoured candidate to be ‘as qualified’ as the other candidate;
- The requirement for the employer to not have a policy of treating the protected group more favourably in recruitment and promotion; and
- The requirement for the more favourable treatment to be a proportionate means of achieving a legitimate aim.
The outcome
Although Cheshire police argued that they had lawfully applied the tie-breaker positive action measure to increase diversification in their workforce, the ET concluded that their approach fell outside of this measure.
The ET accepted that favourable treatment of candidates with protected characteristics was prima facie lawful as the employer had reasonably believed that participation in the role in question by persons who shared that protected characteristic was disproportionately low in the area. However, the remaining three conditions were not satisfied:
- Common sense dictated that all 127 candidates who had passed the interview stage could not all be as qualified for the role of police constable. Further, having deemed candidates as qualified and used positive action to recruit those with protected characteristic, the police had reverted to prioritising the remaining candidates which undermined any argument of equal merit.
- Giving preferential access to candidates with protected characteristics after the interview stage did amount to a policy. It was a strategic approach and blueprint to get those with the identified protected characteristics across the line first, ignoring qualitative assessment/evidence.
- Although the police force had a legitimate aim of increasing diversity in its workforce, the way in which it had applied positive action to the recruitment exercise was not proportionate. Balancing the extent of representation with the impact that positive action might have on Mr Furlong and others, it was noted that Mr Furlong was rejected despite evidence that he was a relatively strong candidate and others may also feel the same, and the knock on effect of their discontentment might lead to a lack of confidence in the organisation that may be counterproductive and not in the public interest. Further, applying positive action to a large volume recruitment exercise like this was not reasonably necessary. The police force should have analysed the impact of the measures it had already put in place to address underrepresentation which were bearing fruit and not imposed artificially low thresholds that ignored qualitative assessment and then reintroduced it afterwards.
Accordingly, the ET held that Mr Furlong’s claim of direct discrimination succeeded. Mr Furlong would have been recruited if the force had not applied positive action and used the merit-based approach correctly.
“This case highlights the need to be careful to ensure that positive action measures are only applied in recruitment to distinguish between candidates who are of equal merit. It emphasises the need: to ensure that artificially low thresholds are not set to establish whether candidates are equally qualified; and for proportionality and to consider how general positive action may address under representation in the first instance.”
What does this mean for employers?
The line between positive action and positive discrimination can be a difficult one to tread. Creating meaningful change in relation to EDI is important for employers but this case shows how important it is to consider the legislative framework carefully when planning any positive action measures. It highlights the need to be careful to ensure that positive action measures are only applied in recruitment to distinguish between candidates who are of equal merit and not set artificially low thresholds. Offering a post to someone who is less suitable than other candidates just because they have a protected characteristic is positive discrimination and unlawful. The case also highlights the importance of proportionality and the need to consider how general positive action measures under section 158 of the EqA may achieve the desired outcome in the first instance.