There are many sides to discrimination and an employer may wish to be more inclusive of divisions in society that are perceived to be marginalised and have protected characteristics in law, such as the disabled, women, LGBT and ethnic minorities. Laudable as that may be a very careful line must be drawn between illegal positive discrimination and legal positive action, which is permitted by The Equality Act.

An employer may very well believe that their workforce does not proportionally represent, in sufficient numbers, people drawn from the groups with the protected characteristics mentioned in the previous paragraph. However it is unlawful to employ staff simply on the basis of their protected characteristics to even up the workforce if they are not the best candidate for the job and do not have the required qualifications.

Positive action under The Equality Act comprises of "general positive action" and "positive action in recruitment and promotion". A general positive action could take the form of mentoring or offering training programmes. A positive action in recruitment and promotion must ensure when recruiting that all the candidates are equally qualified for the position and any actions are proportionate to the enabling of the persons holding the protective characteristic to participate in the process.

In a recent case involving the Cheshire police force an employment tribunal has found a white heterosexual man was found to have suffered discrimination on the basis of race, gender and sexual orientation. Mr. Furlong applied to the Cheshire police force for a position as a police constable. The Cheshire police have a three stage recruitment process the first stage involving questionnaires, the second stage involving competency assessment and the third stage proceeds to interview.

Mr. Furlong underwent the lengthy process and he was informed he had done well at interview and had successfully completed the assessment stage. However, he was not offered the job despite the fact that he was more qualified than the candidate that was offered the job. The Cheshire police had been identified as one of only four police forces in the country that had no ethnic minorities, disabled or LGBT within its workforce. In an effort to remedy this situation Cheshire police had decided to apply a positive action plan aimed at driving up the numbers of the minorities within its workforce.

At the end of the recruitment drive that Mr Furlong was involved with the 127 candidates that got through the process were considered of equal merit for being appointed to the role. The remaining candidates were selected according to the following:

  • Candidates that had one or more of the protected characteristics of gender, race, sexual orientation or disability
  • Candidates whose first language was not English
  • Candidates that were already employed by The Cheshire police
  • The results from their competency assessment

The employment tribunal found that the mechanism applied by The Cheshire police – the pass/fail – created an artificially low threshold meaning that a significant number of candidates were deemed equal. This enabled the Cheshire police to activate their positive action recruitment plan despite the fact that a number of the candidates were not equal. Also that by selecting candidates on the basis of their competency assessment it compromised the assumption that the candidates were equal at interview stage. Therefore the tribunal concluded that individuals with protected characteristics were more favourably treated. The Tribunal acknowledged that the intention raise the numbers of officers with protected characteristics was a legitimate aim, artificially lowering the standards was not appropriate.

Employers must be aware that they must not adopt recruitment policies that favour candidates with any of the protected characteristics regardless of the any under presentation in their workforce. They may have a policy of being prepared to apply positive action where appropriate, for example in a tie-break situation. Extreme caution must be exercised at all times in the recruitment process and scrupulous attention must be brought to being completely even handed.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.