Understanding the difference between lawful positive action and unlawful discrimination

1st May 2019

Understanding the difference between lawful positive action and unlawful discrimination

With increasing focus on the diversity of workforces and the gender pay gap in businesses, employers may consider positive action when comparing job candidates. A recent tribunal judgment reminds employers that certain criteria must be met for positive action to be lawful.

The tribunal held in Furlong v Chief Constable of Cheshire Police that the Claimant’s claim for direct discrimination on the grounds of sexual orientation, race and sex was successful as the Respondent employer’s positive action was unlawful.

In the context of recruitment, under section 159 of the Equality Act 2010, an employer could treat a person (A) more favourably in connection with recruitment than another person (B) because A has a protected characteristic but B does not. This is only permitted in certain circumstances.

In this case, as the police force had identified that certain protected groups were under-represented it sought to appoint job candidates that had a protected characteristic. In order to do so, the threshold in the application process was lowered so that 127 candidates were passed and therefore deemed to be of “equal merit”. The employer then relied on section 159 to take positive action and give priority to those who were from a protected group when choosing between the “equal merit” candidates. This lead to the Claimant, a white 25 year old heterosexual male, not being offered a job.

The tribunal criticised the employer for stating that 127 candidates were of “equal merit” as there was clear qualitative data collected demonstrating the differing qualities of the applicants.

Further, the aim of increasing diversity was deemed legitimate however the act of providing preferential treatment was not proportionate to this aim as other routes were available.

Employer Considerations

The judgment demonstrates that there are a number of steps that can be taken to avoid a “tie-break” situation where positive action can be made. For example, employers should use all of the data they obtain from the recruitment process to gauge the qualities of the candidates and whether they truly are of “equal merit”. If the tribunal finds that two or more applicants are not of equal merit then any positive action will be deemed unlawful and discriminatory.

The tribunal also suggested other methods and initiatives should be considered prior to using positive action as a means of increasing diversity in the workplace.

If you have any concerns about the circumstances in which you are able to take positive action lawfully, please contact a member of our Employment team.


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