Act, don’t discriminate: how UK employers can navigate positive action

Cheshire Constabulary have a new recruit — hired after an employment tribunal. The police force was ruled to be discriminatory after rejecting the white, straight male during a diversity drive.

How can employers avoid the same fate when taking positive action? We look at the difference between positive action and positive discrimination, and pinpoint where the police went wrong.

A man rejected from Cheshire Constabulary for being a white, heterosexual male will join the force after it was found guilty of discrimination. The recent ruling puts the spotlight back on to this controversial case, leaving employers across the UK wondering whether their own policies are lawful.

Matthew Furlong, 25, applied for a position with the Cheshire police force almost two years ago but was rejected as the constabulary was trying to increase diversity within its ranks. Cheshire Constabulary was one of the forces criticised in 2015 for having no black officers – but, in February of this year, an employment tribunal ruled its solutions to be unlawful.

Cheshire Constabulary have since reached an out-of-court settlement with Furlong, who will start his training in September. Afterwards, the Deputy Chief Constable Julie Cooke said that the police force accepted the findings of the tribunal and “looked very carefully” at their recruitment process.

But how could they have avoided the mess in the first place?

_{Taking positive action}

The Equality Act 2010 says that it is lawful for an employer to act to compensate disadvantages faced by people with a protected characteristic. These protected characteristics are:

• Sex
• Sexual orientation
• Gender reassignment
• Pregnancy and maternity
• Race
• Religion and belief
• Marriage and civil partnership
• Age

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_{Positive action vs positive discrimination}

Positive action is acting to improve things for people in certain groups. It is lawful provided that the employer meets the conditions set out in ss.158 or 159 of the Equality Act 2010.

Positive discrimination is acting to the detriment of people not in those groups. It is unlawful.

This means that employers can’t employ applicants because of their race, sex etc. if other applicants are better qualified. They can target people in a protected group in drives, or training courses – but they can’t favour those candidates when it comes to recruitment. 

_{Positive action is:}

• Meeting the needs of people who share a protected characteristic, even if those needs are different to people who do not
• Enabling or encouraging people who share a protected characteristic to overcome connected disadvantages
• Enabling or encouraging people who share a protected characteristic to participate in activities where their participation is disproportionately low

Importantly, these things must be proportionate and considered on a case-by-case basis.

_{Positive discrimination is:}

• Treating people who share a protected characteristic more favourably
• Discriminating against people without the characteristic

_{What went wrong in Cheshire?}

Back in 2017, Cheshire police chief Simon Byrne said publicly that, while the force was trying to increase diversity, the “pace of change” was slow. He expressed hope for a change in legislation that could “speed things up”. But the Home Office dismissed Byrne’s arguments, saying that introducing positive discrimination would “undermine the public’s expectation that progression in the police is based on merit alone”. ​

Unfortunately, it seems that the force edged over the line anyway by introducing an artificially low threshold for their recruitment process, giving applicants a simple pass or fail rather than a useful score.

The employment tribunal ruled that this was not a proportionate response to the lack of diversity within the constabulary.

_{More information}

If you are involved in your firm’s recruitment, you must confirm that any positive action policies don’t cross the line into discrimination. But, for a busy professional, keeping abreast of the ins-and-outs of employment law is exhausting and often impractical.

Pinney Talfourd is a leading employment law firm that helps companies in Essex and London. We would be happy to meet with you to help. This article was written by Alex Pearce, Senior Associate in the Employment Law Team at Pinney Talfourd LLP Solicitors. The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. Specific legal advice should be taken on each individual matter. This article is based on the law as of June 2019.