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Diverse Discrimination

05 July 2019

Diverse Discrimination

Police Force acted unlawfully when to trying to use ‘positive action’

In the first case of its kind, in Furlong v Chief Constable of Cheshire, an Employment Tribunal (ET) found a police force’s recruitment process had directly discriminated against a white, heterosexual, male applicant.

The claimant, Mr Furlong, a white heterosexual male applied for a position as a Police Constable in the 2017/18 recruitment process with the respondent, Cheshire Constabulary. The recruitment process comprised three stages: an application form to check candidate eligibility; a ‘sift’ stage, consisting of a competency interview and various written and interactive exercises; and, finally, an interview stage for all candidates who had successfully passed the ‘sift’. In 2017/18, a large cohort of 127 candidates progressed to interview. At this final stage, the respondent applied ‘positive action,’ appointing first any candidates with protected characteristics before selecting from the pool of remaining applicants.

Despite passing the ‘sift’ and appearing to perform well at interview, Mr Furlong did not secure an appointment. He brought claims of direct discrimination on the grounds of sexual orientation, race and sex, alleging that the respondent had unlawfully treated candidates with protected characteristics more favourably than himself, when they were less qualified for selection. The respondent contended that it had lawfully applied positive action measures in the Equality Act 2010 to boost recruitment from underrepresented groups.

The ET heard evidence that between 2015 and 2018 the Police Force had also put in place other measures to increase diversity for example holding events with north west employers to support and develop applicants from diverse communities. This resulted in the percentage of black, Asian and minority ethnic (BAME) officers in Cheshire, more than doubling: from 0:61% to 1.46%. This against BAME population in Cheshire of 3:09% in 2018.

More generally, police forces nationally had increased the percentage of officers from BAME backgrounds from 2% in 1999 to 5.5% in 2015 (compared with 14% of the wider population coming from BAME backgrounds).

The ET accepted it was a legitimate aim for theforce to wish to improve minority representation. However, the Police Force had not, in this case, used ‘positive action’ as a ‘tie-breaker’. Rather than selecting between equally qualified candidates, the ET found that the force had applied a ‘policy’ of preferring candidates with protected characteristics (including race), which is prohibited by legislation.

Mr Furlong had performed comparatively well at interview and had received positive feedback. The ET was persuaded that, but for the inappropriately broad application of positive action principles, he would have successfully secured a post.

This case was only decided at ET level and therefore other tribunals are not bound to follow it. However, it may, understandably put off employers from using ‘positive action’ as a tool to make their workforces more diverse. This would be very disappointing given the business imperative to improve diversity and inclusion in the workplace.

The Women and Equalities Select Committee publishes its submission on extending redundancy protection for women and new parents. The Select Committee commented that, despite publishing its own report back in 2016 which showed, each year, 54,000 pregnant women and mothers faced discrimination and poor treatment, “..there were little signs of improvement”.

The Select Committee recommended the government should:

  • take action regarding the prohibitively short three month time limit for bringing an employment tribunal claim, despite significant public and parliamentary support for extending the time limit. It would like the time limit for bringing claims to be extended to six months
  • extend protection to those on shared parental and adoption leave but called for clarity on what forms of longer parental leave would qualify (in consultation with relevant stakeholders) to set up a single comprehensive website for employers and individuals, and to work with the General Medical Council and National Midwifery Council to ensure frontline health professionals can provide basic advice and signpost women to further information and resources.
  • recommend that large companies should be required to report on retention rates for women 12 months after returning from maternity leave and 12 months after lodging an application for flexible working.

Appointment of 54 Salaried Employment Judges/measures to boost judicial diversity
The Lord Chancellor has recently announced the appointment of 54 full time equivalent Employment Judges. These judges will take up their posts this autumn. Separately applications for 50 part-time Employment Judges have now closed. That selection process is due to be completed in February 2020.

This follows a survey of the members of the Employment Lawyers Association in April 2018 where 45% of respondents said they had experienced postponement of a hearing due to lack of judicial resource. Anecdotally, matters appear to have got worse so the appointment of these judges is welcome news.

Postponed hearings are costly for all sides. It is extremely rare for the Tribunal system to reimburse some, if any, of the costs a party has incurred preparing a case for hearing which at the last minute is postponed due to lack of judges. this is not to mention the time, expense and emotion expended by witnesses preparing for a hearing.

Finally, in the first joint initiative between government, the judiciary and the legal professional bodies, a Pre-Application Judicial Education (PAJE) programme has been launched to help lawyers from underrepresented backgrounds develop their understanding of the role and skills required of a judge, before they apply. This will be delivered through a mixture of online resources and discussion groups led by judges, allowing participants to explore perceptions of the barriers to a judicial career. 

Commenting on this initiative the Lord Chancellor, David Gauke said: “Encouraging diversity is important in fostering a legal system that better reflects and represents the range of voices in our society. The PAJE programme is a positive step forward to support lawyers from all backgrounds, including those from underrepresented groups as they aspire towards a judicial career. We are strengthening our world-renowned justice system by drawing on a greater diverse range of knowledge and expertise”. 

Paul McFarlane is a Partner in employment, pensions and immigration, Weightmans LLP

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