Equality and diversity issues are very much to the fore in modern life. Routine behaviour which would have been acceptable just a few years ago, e.g. “characterised as banter”, is now out of the question, and there is a far greater awareness of equality and diversity in all aspects of life, not just in the workplace.
Last December I highlighted an example of a situation in which ostensibly laudable diversity objectives were taken too far and it now appears that Cheshire Police has fallen into the same trap, this time in the context of recruitment procedures.
Matthew Furlong was keen to join the police force, following in the steps of his father, a detective inspector. In 2017 he applied to join Cheshire Police. At his interview he says that he was told that “it was refreshing to meet someone as well prepared as yourself” and that he “could not have done much more”. He duly passed the interview and assessment stage.
As observed in the Tribunal judgment, Mr Furlong is a white heterosexual male without a disability. In November 2017, notwithstanding his successful interview and assessment, he was told that his application had been unsuccessful. Cheshire Police claimed that they had applied positive action measures pursuant to section 159 of the Equality Act 2010. Mr Furlong maintained that Cheshire Police treated successful candidates with protected characteristics more favourably than he was treated, but unlawfully because they were not as well qualified as he was and because there was a policy of treating persons with protected characteristics more favourably in connection with recruitment than others who did not have such characteristics. The result, he contended, was that this approach was not a proportionate means of achieving a legitimate aim.
At this point I should pause to explain the difference between positive discrimination and positive action. Positive discrimination is generally unlawful and can arise where, for example, someone is recruited because he or she has a protected characteristic rather than because he or she is the best candidate. It can also arise where employers seek to impose quotas (watch out BBC) or to recruit a specific number of people with a particular protected characteristic.
On the other hand, positive action can be lawful (under section 158 of the Equality Act 2010), for example when an employer takes action to compensate for disadvantages that it believes are faced by people with a shared protected characteristic (covering age, sex, sexual orientation, marriage and civil partnership, race, religion and belief, pregnancy and maternity, disability and gender reassignment). For example, people with protected characteristics might be specifically encouraged to apply for work or be provided with training. However, and critically, the final selection must be based on merit alone, unless, pursuant to section 159, the candidates are as qualified as each other for the role. Even then, taking the positive action must be a proportionate means of seeking to address the perceived disadvantage and there must not be a policy of treating such people more favourably: each case should be considered in isolation.
So it was that in April 2018 Mr Furlong presented his complaint of direct discrimination on the grounds of sexual orientation, race and sex. (It should be noted that it is not unlawful to discriminate in favour of a disabled person, including the positive duty to make reasonable adjustments to compensate for disability.). The hearing took place over four days before Employment Judge Grundy and two lay members, sitting in the Employment Tribunal in Liverpool. As well as the claimant, evidence was heard from witnesses including the Acting Chief Constable of Cheshire, Jeanette McCormick.
In his judgment, Judge Grundy noted that there were no decided cases in England and Wales concerning the application of section 159 of the Equality Act. In order to establish equal merit, according to the Employment Statutory Code of Practice, an employer would need to “establish a set of criteria against which candidates will be assessed when applying for a job, [which could] take into account a candidate’s overall ability, competence and professional experience together with any relevant formal or academic qualification as well as any other qualities required to carry out the job”.
Reference was also made to guidance from the College of Policing as follows:
A Police Force which has disproportionately low numbers of officers and staff from ethnic minority backgrounds identifies a number of candidates who are as qualified as each other for recruitment to a post. This includes a candidate from one particular underrepresented ethnic minority background. It would be lawful to give preferential treatment to that candidate by appointing them over other candidates, provided they are as qualified as other candidates in the pool for selectionConsiderations for the Police and Stakeholders on the use of positive action initiatives to promote equality in the Police Station workplace (2014)
In this context it is worth noting that, notoriously, in 2015 Cheshire Police had no black police officers.
The Tribunal, after a comprehensive review of the available evidence, reached the following conclusions:
The nub of the Tribunal’s view is that there was clear qualitative data collected by the respondent, albeit not reduced to numerical scoring which gave clear indications of which candidates had demonstrated which qualities, by showing evidential examples to the interview panel of the competencies and values for the role required by the College of Policing.
The Tribunal struggles with the concept in itself that 127 people could be viewed “as of equal merit” for appointment to the role. The Tribunal rejects the contention that the 127 were of “equal merit” or could be ” deemed to be ” of equal merit…
Plainly the aim of the recruitment exercise in using positive action was to recruit a diverse population of new Police Constables who came from a wider background and were more representative of the community which it was intended they would serve, so that the hope was more black ethnic minority officers would be recruited, more female officers and more gay/lesbian/bisexual officers and transgender officers would be recruited. This is a laudable aim…
Whilst the Tribunal applauds the respondents attempts to improve diversity and its attempts to recruit from a wider pool to have more police officers with the protected characteristics, applying positive action to the large volume exercise in this way does not seem to us to be reasonably necessary…
Previous measures were bearing fruit, applications from those in protected characteristic groups were increasing, the reputational damage of the Force having had no black officers in 2015 were improving on the basis of the recruitment since that time and the improvement in the statistics as shown in the March 2018 documentation. The impact of the Force being chosen to host the National Black Police Association Conference in 2017 whilst symbolic would raise BME profile and policing in a positive light. The method and manner of recruitment has to be considered in this backdrop…
In the circumstances the respondents have not demonstrated the justification for the discriminatory effect of the positive action they applied in this case. The respondents were required to consider first the bedding down of their previous positive action measures, secondly, to measurably assess the impact of those to potentially apply positive action to a smaller exercise in the first place, and to not impose artificially low thresholds in terms of a recruitment procedure, nor to completely ignore a qualitative assessment of candidates and then to re- introduce a merit based analysis in a later part of the recruitment.
In the circumstances the Tribunal concludes that the claimant would have succeeded in his application and been appointed as a Police Constable, had the respondent, not applied positive action at the interview stage having obtained and ignored qualitative data and where he was a relatively strong candidate and likely on our assessment to have been positioned on the right side of the number needed to fill the vacancies.
In the circumstances the claimant’s claim in respect of direct discrimination succeeds …Judgment of Employment Judge Grundy issued on 13 February 2019
The judgment reinforces the point that, in general, positive action as well as positive discrimination, will be unlawful unless the very specific requirements set out in section 159 of the Equality Act are met. The clue is in the name – “equality”. The primary objective is that groups with protected characteristics are, notwithstanding those characteristics, treated in the same way as others, rather than in preference to them, other than in the most exceptional and individual circumstances. As the Employment Judge said, the good intentions of Cheshire Police are not in doubt. However, it is clear from this detailed and measured judgment that they went beyond what the law allows. A remedy hearing will now take place to assess compensation payable to Mr Furlong as a result of the discrimination suffered by him and on the basis that he would otherwise have been successful in his application to join the police.