Positive action is an lawful method of preferring candidates and employees from under-represented groups for appointment to roles or promotion. It’s not a new phenomenon; positive action, in various forms, has been permitted for nearly 20 years. So why are so many organisations hesitant to adopt it? In this article we explore some of the unintended consequences around positive action and how to avoid the many pitfalls.
In the broadest sense, positive action is a means of achieving more effective equality outcomes for individuals who share a particular protected characteristic and are socially or economically disadvantaged as a result. In an employment context, positive action allows employers to take steps to enable or encourage protected groups if they reasonably consider that particular protected group to be under-represented in their organisation and the steps taken are proportionate (sections 158 & 159 Equality Act 2010). Positive action can also be used by an employer in a recruitment process as a tie-breaker between equally qualified candidates or employees to appoint the person from the under-represented group.
Positive action is often viewed as a form of positive discrimination. Positive discrimination is treating one person more favourably simply because they have a protected characteristic and is, unequivocally, unlawful, unless there is a particular occupational requirement. Rightly, employers are concerned about falling the wrong side of the line between positive action and positive discrimination which has led many employers, especially those in the private sector, to steer clear of putting in place any formal positive action measures. Employees also want to be hired, promoted and recognised based entirely on merit. Messaging around positive action can, therefore, be tricky both for the successful and the unsuccessful individuals. For some employers, particularly those on the smaller scale, part of the challenge is knowing where to start; with so many under-represented groups to address, it is difficult to know which of those groups to target or prioritise. For all of these reasons, it is perhaps unsurprising that many employers have been reticent to promote positive action in the workplace schemes.
Public sector employers have grasped the nettle so far as positive action is concerned, in large part to comply with their broader public sector equality duty. However, as the recent case of Furlong v Chief Constable of Cheshire Police shows, even the best intended positive action measures can give rise to liability for discrimination. In this case, the Cheshire police force conducted a staged recruitment procedure to hire police constables comprising an application form, assessment entire and competency-based interview. At the conclusion of the interview stage, Cheshire police used positive action as a tie-breaker, on the grounds that all candidates who had passed all 3 stages were of equal merit, and gave preference, in the form of additional weighting, to those candidates who had protected characteristics. There were 127 candidates who passed the interview stage, including Mr Furlong, a white, heterosexual male without any disability, but whose application was not progressed on the basis that he did not possess any protected characteristics. Mr Furlong brought claims for discrimination on the grounds of sex, race and sexual orientation. In defending the claim, Cheshire police claimed they’d lawfully applied positive action measures and so their policy of treating candidates with protected characteristics more favourably than people without such characteristics was lawful. Where Cheshire’s defence fell down was not in demonstrating the under-representation of BME, female and gay police officers – this was relatively straightforward for them to evidence – but in demonstrating that all 127 candidates who had made it through the final interview stage were equally suitable or qualified. It was fatal to their case that Mr Furlong could show that he had higher scores than certain BME, female and gay candidates who had been preferred to him and, in so doing, the tribunal found that Mr Furlong had been subject to unlawful positive discrimination.
While only an employment tribunal decision, this is the first reported case on positive action on this scale. It shows the importance of careful consideration before concluding that candidates are of equal merit and, only then, applying positive action as a tie-breaker. Here the police force had applied the tie-break too early and captured too many people in the pool which made it impossible for them to be able to show they were all equally well qualified for the job.
If you’re thinking about rolling-out any positive action initiatives in your organisation and are concerned about the legal pitfalls of doing so, please contact discrimination experts, Tiggy and Emma for more guidance.