20/05/2019 Briefing

The claimant, Matthew Furlong, a white, heterosexual man who did not have a disability, brought a claim to the employment tribunal alleging that he had been directly discriminated against on grounds of his race, sex and sexual orientation.

The police force sought to defend the discrimination claim by relying on provisions of the UK Equality Act 2010 that permit preference, in certain limited circumstances, to be given to candidates who have ‘protected characteristics’ in recruitment or promotion. However, the employment tribunal found that the employer could not rely on these provisions as it had conducted the recruitment exercise in a way that did not meet the requirements of the UK Equality Act. In order to be able to rely on those provisions, the employer must show that the recruitment exercise was conducted in a manner consistent with the UK Equality Act.

Positive action in event of a “tie breaker”

Mr Furlong applied to become a police constable with the Cheshire Constabulary. There were several stages to the interview process and Mr Furlong passed each one. However, having passed the final stage interview, Mr Furlong was not appointed to the force as there were more appointable candidates than vacancies. Mr Furlong was surprised not to be appointed as he had received good feedback from the chair of his interview panel.

On inquiry, he found that numerical scores, reflecting the quality of the response, had not been given to candidates’ answers in the interview, as was common practice. Indeed, this was how the police force had conducted interviews previously. On this occasion, although the marking forms retained columns with headings that did reflect numerical scoring, the interview panels were told not to ascribe numerical scores but rather to simply assess as pass or fail. The police force then decided to apply three principles to the pool of candidates who were deemed to have passed the process. One of the principles was that candidates who identified with a protected characteristic were appointed ahead of others who did not.

Claim for direct discrimination

Mr Furlong claimed direct discrimination on grounds of his race, sex and sexual orientation on the basis that, as a white, heterosexual man who did not have a disability, he was directly discriminated against as a result of the affirmative action initiative, which gave preference to candidates with protected characteristics. In order to succeed with his claim, he had to show that he had been treated less favourably than comparators who were, for example, women, LGBT, black, Asian and minority ethic candidates, and appointed ahead of him despite having not performed better than him in the interview.

In order to establish whether candidates had performed better than Mr Furlong, an exercise was undertaken to ascribe numerical scores to the responses of all relevant candidates, working from the columns on the assessment forms completed by the interview panels, which was similar to the way the assessment had been done in previous recruitment rounds. The exercise established that Mr Furlong had achieved a notional score of 76%. A significant number of candidates were appointed with lower notional scores due to the application of the principle, including one who had achieved half of his notional score. It was clear that such treatment would amount to direct discrimination unless the police force could rely on the affirmative action provisions of the UK Equality Act.

The UK position on affirmative action

Section 159 of the UK Equality Act applies where the recruiter reasonably thinks that participation in an activity by those with a protected characteristic is disproportionately low, and where action is aimed at increasing participation by such candidates. In addition, for the provision to apply:

  1. the candidate with the protected characteristic must be as qualified as the candidate in preference to whom he or she is appointed;
  2. the employer must not have a policy of treating people with protected characteristics more favourably than others; and
  3. the action taken must be a proportionate means of achieving a legitimate aim.

Decision of the employment tribunal

The UK employment tribunal found that the police force had a reasonable belief in the disproportionately low representation within its workforce of individuals with protected characteristics. Crucially however, it did not accept that 127 candidates could all be of equal merit. Therefore, the recruitment process did not meet the requirement that the appointed candidate be as qualified as Mr Furlong, given that the use of the pass/fail mechanism created an artificially low threshold.

The tribunal also held that the police force’s actions in giving preferential access to candidates with protected characteristics did amount to a policy. It found that, although increasing diversity within its workforce amounts to a legitimate aim (which Mr Furlong did not challenge), the action taken was not proportionate, particularly in circumstances where numerous initiatives were being undertaken to improve diversity within the workforce, which had yet to bed down and have their effect measured.

Key principles for engaging in affirmative action

This case and decisions of the Court of Justice of the European Union provide a roadmap for employers on how best to engage in affirmative action to help ensure a more balanced workforce. Case law confirms that affirmative action is permitted but only as an exception to the general rule prohibiting discrimination. In other words, care must be taken by employers to ensure that certain principles are observed in the implementation of any such measures, namely:

  1. Affirmative action is permitted if those with ‘protected characteristics’ are underrepresented and the action falls away when a balance is struck.
  2. Affirmative action is an exception to the general rule of equal treatment and therefore is subject to strict construction before the courts, i.e.:
    • the candidate with the protected characteristic must be as qualified as the candidate in preference to whom he or she is appointed; and
    • the action taken must be a proportionate means of achieving a legitimate aim.
  3. It is unlawful to grant absolute and unconditional priority to persons with protected characteristics.

If the above conditions do not apply then the affirmative action will not be permitted.

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