Background
Treating job applicants fairly should be one of the cornerstones of any recruitment process. Most employers will know that in the vast majority of cases they shouldn’t make decisions based on gender, race, religion, age or any other protected characteristics, unless the job calls for that characteristic to be present (e.g. a post for a vicar, or in a women’s refuge).
Some employers may wish to attempt to address under-representation from certain groups by encouraging applications from those groups. For example, employers in professions typically undertaken by white males may place adverts in publications or websites that target ethnic minority or female applicants, in an attempt to achieve more balance in their workforce.
Some employers may go further still, and give preference to the under-represented groups at the interview stage. This approach is known as positive action and, provided that it is managed carefully, is permitted by equality legislation.
Taking the example above, an employer may be able to treat under-represented applicants more favourably where the employer reasonably considers that either:
- Persons with a particular protected characteristic suffer a disadvantage connected to that characteristic; or
- Participation in an activity (e.g. applications for jobs in certain sectors) by persons with a particular protected characteristic is disproportionately low.
However, while a desire to promote diversity in recruitment is laudable, the law allows positive action only in limited circumstances. As well as one of the two grounds above, the following must apply in order for positive action to be lawful (again using the example above):
- The applicant(s) given preference are as qualified as the applicants without the characteristic;
- The employer does not have a policy of treating persons with a particular protected characteristic more favourably than those without the characteristic; and
- Taking the action is a proportionate means of achieving a legitimate aim (i.e., in this example, there is no less discriminatory way of promoting diversity).
As can be seen, the rules on this subject are complex, and there is a great deal of scope for well-meaning employers to get it wrong, as was experienced by Cheshire Police (CP) in this case.
The facts of the case
CP advertised for multiple Police Constable posts. CP had previously faced criticism due to having a lack of diversity in its force, and wished to address this in its recruitment for the Constable positions.
The recruitment process was in three stages: an application form and questionnaire, a competency interview with numerical and written tests, and a final interview.
Mr Furlong (a white, heterosexual male) made it to the third stage of the process, but CP decided to take positive action and give preference to those with particular protected characteristics, which resulted in Mr Furlong not being offered one of the posts. Mr Furlong then brought a discrimination claim against CP.
The ET’s decision
At the Employment Tribunal (ET), CP attempted to justify its decision by stating that all of the candidates at the third stage of the recruitment process were as qualified as one another. However, the ET was not convinced by that argument, particularly as Mr Furlong’s test scores showed that he performed a great deal better than many of the other applicants.
The ET also found that at the third recruitment stage, the employees with better scores were not placed ahead of the others, and that they were all ‘deemed equal’ by CP. The ET held that this approach meant that CP had ‘pre-selected’ the applicants with certain protected characteristics, which constituted a policy of treating those applicants more favourably.
In addition, the ET decided that giving priority to the applicants with particular protected characteristics was not a proportionate means of meeting a legitimate aim. While the ET noted the good intentions of CP in the circumstances, it was clear that CP had not met any of points 3 to 5 above, and accordingly upheld Mr Furlong’s claim.
What does this mean?
Employers may be discouraged by this decision and perhaps made more wary of trying to address a lack of diversity in their recruitment campaigns. However, this case hasn’t made it more difficult to take positive action; it has merely confirmed that it will be allowed only in particular circumstances and when handled well by the employer.
Before considering whether positive action is appropriate in your own recruitment, it is worthwhile asking a few questions:
- Is there a disadvantage affecting certain groups, or an under-representation of those groups?
- Can it reasonably be said that the applicants are equally qualified?
- Is positive action the least discriminatory way of promoting diversity?
If the answer to any of those questions is no, positive action may not be lawful in the circumstances, and the old adage about good intentions could prove true in an expensive way in the event of a claim.
If you have any questions on any of the issues raised in the above article please contact Seanpaul McCahill.