(Not so) positive action…

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Section 159 of the Equality Act 2010 ‘Positive Action: recruitment and promotion’ entitles an employer with two or more equally qualified candidates to choose the candidate who possesses a protected characteristic if the intention is to ensure a diverse workforce. Choosing a candidate from an under represented group is capable of being a proportionate means of boosting diversity.

This area of the law has been considered for the first time in the recent case of Furlong v The Chief Constable of Cheshire Police. The claimant, Mr Furlong, applied for the role of Constable with the Cheshire Constabulary in November 2017. He was successful at the assessment centre and interview stage but was informed at the end of the recruitment process that he would not be offered a position. The claimant was naturally surprised having been told that he had performed very well at the interview stage and that he “could not have done more”. The claimant argued Cheshire Police’s decision to use positive action in that instance was an act of unlawful direct discrimination.

Cheshire Police argued that its decision had been made with the sole intention of promoting diversity in its workforce, that the 127 applicants were all of equal merit, which entitled them to choose a candidate with characteristics underrepresented in the force. The tribunal found that of the 127 candidates, many had different overall scores and some even had negative scores. Section 159 prohibits the use of ‘artificially low thresholds’. For example, using a pass-fail criterion for two candidates who scored 71% and 91%, and arguing both met the pass mark, would be deemed a threshold too low to justify the use of s159.

The tribunal held that the respondent’s pass/fail threshold was too low to justify the equal merit defence. Accordingly, Mr Furlong was successful in his direct discrimination claims.

This case demonstrates that whilst positive action can be used in recruitment, employers need to ensure it is applied only when candidates are of equal merit. Failure to do this can lead to unlawful discrimination claims.

Discrimination is a complex area of Employment law. If you need to discuss any of the issues raised in this article, please contact our expert Employment team on 0161 941 4000 or by email lawyers@myerson.co.uk.