Positive action in recruitment – what do employers need to consider?  

By Will Rollinson, employment and immigration lawyer, Brodies LLP

The Equality Act 2010 allows employers to take positive action in two circumstances. These are:

General positive action - e.g. creating a women's mentoring group to help female staff meet senior female leaders in an attempt to help improve under representation of women in senior roles; and Tie breaker action in recruitment - where two or more candidates are as qualified as one another, in certain circumstances an employer may recruit one with a protected characteristic over the others.

Any preferential treatment of someone with a protected characteristic which goes beyond this will be unlawful positive discrimination.

The 2019 employment tribunal decision in Furlong v Chief Constable of Cheshire Police is thought to be the first case which considered the tie-breaker provisions.

Furlong v Chief Constable of Cheshire Police

Cheshire Police had put in place an action plan to try to improve diversity in its police force to be more reflective of the demographic it served. Progress had been slow and, in a bid to address this, the police decided to take a new approach to their 2018 intake of police constables. Applicants were put through a hard sift and those who made it through were scored at an assessment centre and then interviewed. The interview process was simply a pass/fail with the force deciding that anyone who passed was deemed to be of equal merit.

Relying on the tie-breaker provision in the Equality Act, they appointed all BAME; female; LGBT; and disabled applicants who had passed the interview. Other candidates were put on hold as there were not enough vacancies for all applicants.

Mr Furlong was a white, heterosexual male who was put on hold. He was told that he could not have done more during the interview process. After submitting a complaint to the force, Mr Furlong then brought a claim for direct discrimination on the grounds of sexual orientation, race, and sex.

The Employment Tribunal decided in Mr Furlong's favour. They thought it to be a fallacy that the force deemed 127 applicants who passed the interview to be of equal merit. Whilst there was no detailed scoring exercise, it was clear from the information available that there was qualitative data from which it could be ascertained that some candidates had performed better than others. A blanket approach of this scale was disproportionate to the (laudable) aim of trying to improve diversity in the workforce.

Commentary

It is recommended that employers adopt better monitoring and analysis of existing initiatives in order to demonstrate proportionality in their steps rather than adopting blanket approaches such as the one taken in the above case.

Whilst general positive action was not examined in any particular detail, with gender pay gap reporting in place and ethnicity pay gap reporting on the horizon, many firms have a renewed focus on initiatives aimed at improving participation and progression of underrepresented groups in their organisations. Careful consideration should be given to what amounts to lawful positive action and what might fall foul of the legislation.

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