Improving diversity: when is it appropriate to use 'Positive Action'?

How can you improve your workplace diversity?

One way is to use “positive action” (also known as “positive discrimination”) in the recruitment process. However, using positive action is not without pitfalls, as we see from the recent Employment Tribunal case of Mr Furlong v the Chief Constable of Cheshire Police.

Facts of the case

Mr Furlong, a white heterosexual male, applied for the position of Police Constable with the Cheshire Police Force. Due to previous criticisms Cheshire Police decided to use “positive action” in an attempt to improve diversity among its officers and they applied the following 3-stage recruitment process:

1. An application form to check candidate eligibility for the role and a competency based questionnaire;
2. A sift stage, comprising a competency interview, numerical and verbal reasoning tests, written exercises and interactive exercises; and 
3. An interview stage for those candidates who successfully completed the sift stage.

At the 3rd stage of the process Cheshire Police applied a policy of “positive action” with regard to recruitment, which resulted in Mr Furlong not being recruited. 

What is “positive action”?

The law does not require employers to take positive action, but they can do so in certain limited circumstances, as set out in Section 159 of the Equality Act 2010. This allows for employers to take “positive action” in recruitment or promotion situations where it is reasonably thought that:

• Persons with protected characteristics are suffering a disadvantage connected to their characteristic; or
• Participation in an activity (in this case being a Police Constable) by persons with a protected characteristic is disproportionately low; and
• They were taking action, in giving preferential treatment to candidates with protected characteristics, with the aim of enabling them to overcome or minimise their disadvantage or to participate in the activity. 

In addition, under Section 159(4), employers must be able to show that:

• Those candidates being given preferential treatment because of their protected characteristics were equally qualified as those without protected characteristics; 
• It did not have a policy of treating persons with protected characteristics more favourably in recruitment generally; and 
• Prioritising the appointment of candidates with protected characteristics was a proportionate means of achieving a legitimate aim.

The Tribunal’s findings

The Tribunal held that Cheshire Police had applied positive action unlawfully because:

1. Of the 127 candidates who successfully reached the 3rd stage, all were “deemed” by Cheshire Police to be equally qualified as each other. The Tribunal, however, found that describing all of the 127 candidates as “equally qualified” was a fallacy: Mr Furlong in particular had scored exceptionally highly;
2. Cheshire Police’s actions in giving preferential access to candidates with one or more protected characteristics amounted to a “policy”. Whilst in the earlier stages of the recruitment process the candidates were selected on merit, at the interview stage the candidates who demonstrated and evidenced their criteria were not prioritised in respect of these qualities; they were all “deemed equal” thereby allowing positive action to, in effect, pre-select those with the particular protected characteristics to be appointed; and
3. Appointing those with a protected characteristic regardless of performance at the earlier assessment stages, was not a proportionate means of achieving a legitimate aim and was not in the public interest.

The Tribunal applauded the Chief Constable's attempts to improve diversity by recruiting from a wider pool in order to have more officers with protected characteristics. However, it pointed out that positive action should only be used to distinguish between candidates who were genuinely equally qualified which was not the case here.

Practice points

When using positive action, employers should consider as part of their plans:

1. The workplace disadvantages of particular protected characteristics being targeted;
2. Whether the level of participation in the specific activity is disproportionately low;
3. When and how positive action can be used;
4. How they will be able to demonstrate that their use of positive action can be viewed as a proportionate means of achieving a legitimate aim; and
5. How using positive action in this way is a proportionate and reasonable way of enabling persons with protected characteristics to overcome or minimise that disadvantage, or to participate in the activity.