Sue Sleeman involved in employment case touching on novel area of law - Section 159 of the Equality Act
This is, so far as we know, the first time that an employer has sought to defend a discrimination claim by relying on provisions in the Equality Act 2010 that permit preference to be given to candidates who have “protected characteristics” (eg, women, LGBT, BAME candidates or those with a disability) in recruitment or promotion. In this case the Employment Tribunal found that the employer could not rely on the provisions as it had conducted the recruitment exercise in a way that did not meet the requirements of section 159 of the Equality Act 2010. If a recruitment exercise is conducted in such a way as to be compatible with the requirements, an employer should be able to rely on those provisions when seeking to achieve diversity with the workforce.
It is accepted that the aims of the force (increasing diversity so as to better reflect the community it serves) are laudable. Employers do however need to be careful to stay within the limits of what is permitted by section 159 if intending to rely on it to defend claims of unlawful discrimination.
The Claimant, Matthew Furlong, applied to become a police constable with the Cheshire Constabulary. His father is a serving officer in the same force. The recruitment process is done on volume, that is, a number of individuals are assessed at the same time and the force was looking to appoint successful candidates to a known number of vacancies. There were several stages to the process and Mr Furlong passed each one. The final stage was a panel interview, which he passed but was not appointed as there were more appointable candidates than vacancies. Mr Furlong had received good feedback from the chair of his interview panel and was surprised not to be appointed.
On enquiring, he found that the force had not given numerical scores to candidates’ answers in the interview, as is common practice, with the value reflecting the quality of the response. This was how the Force had conducted interviews previously, but on this occasion, although the marking forms retained columns with headings that did reflect the quality of the responses, interview panels were told not to ascribe numerical scores but simply to assess as pass or fail.
The Force then decided to apply three principles to the pool of candidates who were deemed by this process to have passed. One of those principles was that candidates who identify with a protected characteristic were appointed ahead of others who did not.
Mr Furlong is a white, heterosexual man who does not have a disability. He brought claims for direct discrimination on grounds of his race, sex and sexual orientation. In order to succeed with his claim he had to show that he had been treated less favourably than comparators who were women, BAME and LGBT candidates who were appointed but who did not perform better than him in the interview.
In order to establish whether candidates had performed better than Mr Furlong, an exercise was undertaken to ascribe numerical scores to the responses of all relevant candidates, working from the columns on the assessment forms completed by the interview panels, in a similar way as had been done in previous recruitment rounds. That exercise established that Mr Furlong had achieved a notional score of 76%. A significant number of candidates were appointed who had lower notional scores due to the application of the principle, including one who had achieved half of his notional score. Such treatment would amount to direct discrimination unless the Force could rely on the provisions of section 159.
Section 159 applies where the recruiter reasonably thinks that participation in an activity by those with a protected characteristic is disproportionately low, and where action is aimed at increasing participation by such candidates.
- The candidate with the protected characteristic must be as qualified as the candidate in preference to whom he or she is appointed
- The employer must not have a policy of treating people with protected characteristics more favourably than others
- The action taken must be a proportionate means of achieving a legitimate aim.
The Employment Tribunal’s Decision
The Employment Tribunal did not doubt (and it was not argued otherwise by the Claimant) that the Force had a reasonable belief in the disproportionately low representation within its workforce of individuals with a protected characteristic.
It went on to find that the force’s use of the pass/fail mechanism created an artificially low threshold, and that to deem all those who passed as equally qualified offends common sense. The force’s exercise did not therefore meet the requirement that the appointed candidate be as qualified as Mr Furlong. The Tribunal did not accept that 127 candidates could all be of equal merit.
The Tribunal also held that the Force’s actions in giving preferential access to candidates with protected characteristics did amount to a policy. It also found that, although increasing diversity within its workforce amounts to a legitimate aim (which Mr Furlong did not challenge), the action taken was not proportionate, particularly in circumstances where numerous initiatives were being undertaken to improve diversity within the workforce which had yet to bed down and their effect measured.