When positive action is not so positive

Under the Equality Act, employers are allowed to take positive action by preferring a candidate from a protected minority where it considers that group to be under-represented, if they have two or more candidates of equal merit.

In the case of Furlong v Chief Constable of Cheshire Police, the police force attempted to take positive action to address their perceived shortage of female, BME, LGBT and disabled employees. As such, they reduced the pass mark of the assessment resulting in having 127 candidates to choose from. The police force then treated all 127 candidates of being of equal merit, despite there being a range of scores in the assessment, and sought to prefer candidates from the protected groups they had identified.

Mr Furlong who had scored highly at each stage of the process was unsuccessful with his application and so made a claim to the Employment Tribunal. His claim was successful as the Tribunal deemed:

1. The 127 candidates who had passed the assessment were not all equal as evidenced by the scores from the assessment process, and so this was not a tie-breaker situation;
2. The police force had adopted a policy of positive discrimination which was not seen as being reasonably necessary; and
3. That applying a blanket approach was not a proportionate means of achieving a legitimate aim, namely improving diversity within the workforce.

As a result of the above, the Tribunal held that the policy discriminated against white, male, heterosexual candidates without a disability and so Mr Furlong’s claim was successful.

Positive discrimination can be a useful tool for employers where they identify that a certain group of people is disadvantaged or are disproportionately low in their organisation. As the above case demonstrates though, employers must be careful if they attempt to adopt an approach using positive action, in particular consideration of the Equality and Human Rights Commission’s Code of Practice should be given.