In Furlong v Chief Constable of Cheshire Police an employment tribunal unanimously found that a police force’s recruitment process directly discriminated against a white, heterosexual, male applicant in the first decided case on the use of positive action under s.159 of the Equality Act 2010.
The respondent, Cheshire Constabulary, operated a three-stage recruitment process. An initial application form was used to check eligibility. In a second ‘sift’ stage candidates completed a competency interview and other exercises. Finally, those candidates who successfully passed the sift were interviewed. In 2017/18, a group of 127 candidates progressed to interview. At this final stage, the respondent applied ‘positive action’ by appointing candidates with protected characteristics first. Mr Furlong appeared to perform well at interview but was not appointed. He brought claims of direct discrimination on the grounds of sexual orientation, race and sex.
The Equality Act permits an employer to treat a candidate with a protected characteristic ‘more favourably in connection with recruitment or promotion than another person’ if it reasonably thinks that:
- ‘persons who share a protected characteristic suffer a disadvantage connected to that characteristic’ or
- ‘participation in that activity by persons who share a protected characteristic is disproportionately low’.
However, the candidate with protected characteristics must be ‘as qualified’ as non-protected candidates, the employer must show that it does not have a policy of treating people with protected characteristics more favourably and an employment tribunal must be convinced that the employer’s action is proportionate.
In upholding the claim, the tribunal rejected the argument that all candidates in the group of 127 people who passed the sift stage were genuinely as qualified as each other. Although no formal scoring framework was used by the employer, the evaluation forms completed by interviewers clearly showed that some candidates were stronger than others. The tribunal instead found that the employer had applied a blanket policy of prioritising candidates with protected characteristics, which is not permitted by the Act. Despite demographic evidence produced by the respondent indicating underrepresentation of LGBT, BAME and female police officers, the tribunal also considered the respondent’s approach to recruitment to be a disproportionate means of encouraging increased participation and/or overcoming or minimising the disadvantages faced by people with protected characteristics. This conclusion was based on the fact that the police force already had an extensive and varied equality and diversity programme which was “bearing fruit”.
The decision serves as a reminder that employers need to exercise a degree of caution when implementing any positive action recruitment measures, particularly where steps are taken within the context of existing diversity initiatives. Care must be taken to ensure measures do not amount to a general policy of favouring candidates on the basis of their protected characteristics.
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