In the recent case of Turner-Robson & Ors v Chief Constable of Thames Valley Police, an employment tribunal has found that the promotion of a minority ethnic sergeant without a competitive recruitment process was unlawful positive discrimination.
Positive action v positive discrimination
The Equality Act 2010 contains provisions which enable employers to take lawful positive action in certain circumstances to help people with protected characteristics who are suffering a disadvantage, have specific needs or are disproportionately underrepresented. The employer can take proportionate measures to encourage or enable increased participation of such people or enable or encourage them to overcome that disadvantage or to meet their additional needs. If an employer takes action which favours one group over another it may amount to unlawful positive discrimination (noting that there are exceptions, for example, treating a disabled person more favourably than a non-disabled person). Positive action can become positive discrimination if the measures continue too long or are disproportionate, going beyond enabling an individual to overcome a disadvantage.
Positive action is permitted in recruitment and promotion but only in circumstances where the applicant is as qualified as other candidates (those without the relevant protected characteristic(s)) where the protected characteristic can be used as a “tie break point”. The action should also be a proportionate means of achieving a legitimate aim and the employer should not have a policy which favours those with the relevant protected characteristic over other applicants.
The facts
Three white police officers expressed an interest in a potential vacancy for a Detective Inspector role. However, the role was not formally advertised, and no competitive recruitment process was held. The role was awarded to a minority ethnic Detective Sargeant as part of the Thames Valley Police’s efforts to fast-track minority ethnic officers through the ranks (the Positive Action Progression Programme). The white officers brought claims for direct race discrimination. Thames Valley Police argued it was positive action and therefore acceptable under the Equality Act 2010.
The decision
The claims were upheld, confirming that the officers had been treated less favourably simply by not being afforded the opportunity to apply for or be considered for the Detective Inspector role. The Tribunal found that the appointed officer would have performed well on her own merit if a proper recruitment process had been completed. Thames Valley Police should have carried out a balancing exercise to consider if the positive action, appointing a minority ethnic officer without a competitive recruitment process, was proportionate to the legitimate aim of promoting a more diverse group of senior officers. It was found that it was disproportionate, and a full process should have been followed.
In this case, the positive action went too far and became positive discrimination. It would have been acceptable to offer the role to the appointed officer on the basis of her race if a competitive process had been followed and all the candidates had scored equally well. To just give her the role, without any competitive recruitment process, was a step too far.
Comment
Employers should be applauded for any diversity and inclusion efforts they make, however, it is important that they do not positively discriminate in order to seek to achieve a diverse workforce. Recruitment processes should be competitive and fair. Employers should be careful to ensure all qualified candidates are given the opportunity to apply and be considered for any role. Only after a competitive process should any positive action be taken to appoint a candidate with a protected characteristic over another equally qualified candidate.
Charlotte Gunn