Legal Corner: Police force discriminated against ‘White heterosexual male’ in not appointing him to a job

29th Mar 2019

It is a little known fact that whilst the Equality Act is primarily aimed at prohibiting different forms of discrimination against various protected groups in a variety of circumstances, it also permits an employer to take positive action in respect of recruitment and promotion.

The provisions apply in circumstances where people participation by those who share a particular protected characteristic is particularly low; in those circumstances an employer is permitted to treat someone with a protected characteristic more favourably than someone who does not, so long as that person is equally qualified as the other, and that action is considered to be a proportionate means of achieving a legitimate aim.

This section is often referred to as a ‘tie-breaker’ provision, in that if two candidates cannot be separated during the final stages of a recruitment or promotion stage, then the fact that one has an underrepresented protected characteristic can be used to determine between them.

Mr Furlong, a white male heterosexual, applied for a position as a Police Officer with Cheshire Police. His father is a serving Police Inspector with the same force. He attended, and passed, a Police Assessment Centre, and was invited for an interview.

At the conclusion of his interview, he was told by the chair of the panel: “It was refreshing to meet someone as well prepared as yourself” and that he “could not have done anymore”. However, Mr Furlong was subsequently informed that although he had passed the interview, he had been unsuccessful as there were not enough positions for all those who had passed his application had therefore been put on hold.

Mr Furlong’s father raised an internal complaint about the matter, and Mr Furlong himself then brought a claim in the employment tribunal alleging that he had been discriminated against on the grounds of his race, sex and sexual orientation (Case Number 2405577/18). Cheshire Police argued that it had applied positive action measures because it had an under representation in relation to race, sex and sexual orientation.

In 2016, a House of Commons Home Affairs Committee report had identified that Cheshire was amongst a small number of police forces which did not employ any black or black British police officers. Cheshire had put in to place a positive action plan from 2015, with the intention of increasing the representation of underrepresented groups within its workforce. The Employment Tribunal scrutinised these efforts and noted that there had been some improvement in recruitment, particularly as a result of open days and measures designed to increase applications from members of those groups.

In relation to the recruitment campaign for which Mr Furlong had applied, the Tribunal found that there were three stages; an application form, a competency assessment, and then an interview. At the interview, candidates were asked a series of competency-based questions, and detailed notes were made. Each candidate was then awarded a ‘pass’ or ‘fail’ at the end of the interview.

All candidates who passed (127 of 182) were considered to be of ‘equal merit. Candidates were then selected based on a series of principles; first, candidates who identified as having a protected characteristic female, BME, LGBT or disability were appointed first. Secondly, those who spoke English as a second language were appointed next, followed by those who were already employed by Cheshire Police in another capacity, such as a PCSO. Finally, the last positions were filled based on a candidate’s assessment centre score.

The Employment Tribunal found that it was a fallacy to suggest that 127 people were all of ‘equal merit’ such that positive action could be taken at that point. In particular, they noted that the final principle of appointment related to assessment centre scores which undermined the argument that the 127 people who ‘passed’ the assessment could all be considered equally.

Significantly, the tribunal found, having considered at length the notes of the interview, that there were clear comments made which highlighted that amongst those who had been awarded a ‘pass’, some had performed better than others. The tribunal found that Mr Furlong’s interview, whilst not the strongest was relatively strong, such that he would have been awarded a position. The fact that he had not been was considered to amount to direct discrimination on the grounds of his race, sex and sexual orientation.

This decision is thought to be the first decided case on the positive action provisions of the Equality Act. It highlights the care with which an employer needs to consider when, and how to use such provisions. The fact that there is a clear reason to utilise them is insufficient if the circumstances do not clearly warrant it.

Safia Tharoo, Barrister, 42 Bedford Row, London

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