Employers to ensure positive action is lawful

A police force using "positive action" to recruit people with different characteristics has been held to be using it in a discriminatory way, in the first case of its kind in the UK.

In Mr M Furlong v The Chief Constable of Cheshire Police (2405577/2018) the tribunal in Liverpool ruled Mr Furlong had been a victim of direct discrimination on the grounds of his sexual orientation, race and sex. The hearing to determine the amount of compensation will be held later this year.

Mr Furlong, a white hetrosexual male with no disabilities, applied to join the  Cheshire Police force in 2017. He was one of 127 candidates and despite a successful completion of the assessment centre and interview the claimant was told on 23 November 2017 that he had been unsuccessful with his application.

The force claimed that the 127 candidates were all equally suitable for the role of police constable, something that was found to be a "fallacy", the tribunal ruled. Imposing such an artificially low threshold - assigning candidates a pass or fail rather than any kind of score - was not a proportionate response to addressing the force's lack of diversity. Cheshire Police was among a number of forces criticised in 2015 for having no black officers.

Cheshire Police force asserted that it applied positive action measures within Section 159 of the Equality Act 2010 but the tribunal ruled that while positive action can be used to boost diversity, it should only be applied to distinguish between candidates who were all equally well qualified for a role.

Mr Furlong’s lawyers said that “had he not been such an exceptional candidate he may not even have suspected anything was wrong and this unlawful and unacceptable selection process may have been allowed to continue. Positive action is an important tool to support a diverse workforce that reflects the community in which we live. However it must be applied lawfully to ensure the highest calibre of candidates are recruited regardless of race, gender or sexual orientation and to ensure standards in police forces are maintained to properly protect our society.”

This case serves as a warning to employers that care must always be taken to ensure that recruitment is lawful.

Posted on 6 March, 2019 by Ortolan

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