It is illegal to make recruitment decisions based on gender, race, religion, age, disability, marriage status or sexual orientation unless the job reasonably requires that specific characteristic.
Positive discrimination is the attempt to address under-representation from certain groups by encouraging applications from those groups and is particularly prevalent in the public sector.
In a recent case, Mr M Furlong v The Chief Constable of Cheshire Police.Mr Furlong (a white, heterosexual, non-disabled male) applied for a position as a police constable in the Cheshire Constabulary. Although successfully completing the assessment centre and interview stages, Mr Furlong was told he was unsuccessful in his application. He believed this was because Cheshire Police had treated other candidates with protected characteristics more favourably during the interview process than him, and that those candidates were not as well qualified. Mr Furlong then claimed direct sex discrimination on the grounds of sexual orientation, race, and sex.
Cheshire Police’s defence was that they had applied a positive action measure in line with the Equality Act 2010, to increase diversification in their workforce. They disclosed a vast number of statistics one of which claimed that there were 127 candidates that were ‘of equal merit’ at the time Mr Furlong was interviewed. However, the Tribunal found that it was not possible that 127 people could be ‘as qualified as each other’.
The policy of positive discrimination had been applied in large volume which could not be considered reasonably necessary based on the evidence. Cheshire Police had not proven that they had a reasonable belief that there was a particular barrier to candidates with protected characteristics.
Although the Tribunal accepted that there is a need for more diversity in the police generally, Cheshire Police’s blanket approach of positive discrimination was not considered a proportionate means of achieving a legitimate aim.
It should be noted that positive discrimination is not necessarily illegal and is specifically permitted by the Equality Act provided that:
- The applicants given preference are as qualified as the applicants without the characteristic,
- The employer does not have a policy of treating persons with a particular protected characteristic more favourably than those without the characteristic; and,
- Taking the action is a proportionate means of achieving a legitimate aim (typically, this means that there is no less discriminatory way of promoting diversity).
As can be seen, the rules on this subject are complex, and there is a great deal of scope for well-meaning employers to get it wrong, as was experienced by Cheshire Police.
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