Positive Discrimination in employment under the Equality Act 2010

UK and European Law is primarily founded on the principle of formal equality – that likes be treated alike. Treating someone less favourably because of a characteristic protected by the law, in an area where the law outlaws discrimination (such as the field of employment), is unlawful. Positive Discrimination, which entails treating someone more favourably and which inherently means others are treated less favourably, is thus unlawful unless there is an exception.

One such exception, building on European Union case law, can be found in section 159 of the Equality Act 2010. This little litigated provision hit the headlines in February 2019 when the Chief Constable of Cheshire Police was found to have directly discriminated against a heterosexual, white, male applicant on the grounds of sexual orientation, race and sex by misapplying the provision.

Equality Act 2010: A new era in positive discrimination law

When the Equality Act 2010 unified much of the British anti-discrimination statute book, existing positive action measures (short of positive discrimination such as encouraging applications) were consolidated and enhanced in section 158. The following section, however, contained a more radical novation.

Section 159 of the Equality Act 2010 provides that employers, and the like, may treat someone more favourably with regard to appointment or promotion if that person has an underrepresented protected characteristic and doing so helps to overcome related disadvantage or low participation by persons from that group – but only if:

• that person is as qualified as the candidates from the over-represented group
• the preference for people from that group is not automatic
• doing so is a proportionate means of overcoming the disadvantage or low participation

This provision took advantage of the limited latitude under European Union law which allows Member States, with a view to ensuring full equality in practice, to maintain or adopt specific measures which mitigate disadvantages (if linked to age, disability, sexual orientation, religion or belief or race, under Article 7 of Council Directive 2000/78/EC) or (if with regard to sex under e.g. Article 157 TFEU) ‘provide for specific advantages in order to make it easier for the underrepresented sex to pursue a vocational activity or to prevent or compensate for disadvantages in professional careers’.

Such measures, under the EU case law established by Marschall v Land Nordrhein-Westafalen, Badeck v Landesanwalt beim Staatsgerichtshof des Landes Hessen and Abrahamsson et al. v Fogelqvist, do not extend to allowing automatic and unconditional preference for one group when it comes to decisions regarding appointment or promotion (see e.g. Hand (2008)).

There have been few cases testing this definition. A search of the Employment Tribunals decisions website (containing decisions from February 2017) reveals only four cases, two of which involve the Police and were decided a month apart:

• Mr M Furlong v The Chief Constable of Cheshire Police (13 Feb 2019), outlined below
• Mr S Altaf v Chief Constable of West Yorkshire Police (14 Mar 2019)

Mr S Altaf v Chief Constable of West Yorkshire Police (14 Mar 2019) held that section 159 permits but does not require the use of limited positive discrimination and the failure to treat people more favourably, where the circumstances may have allowed, was not in itself an indication of less favourable treatment. (The third case, involving Commerzbank, merely considered the possibility of recommending the use of the section as part of a remedies hearing and the fourth case was an ill-fated attempt to use the provision as a sword rather than a shield).

The decision in Furlong v The Chief Constable of Cheshire Police

While it attracted considerable media attention, the decision in Furlong v The Chief Constable of Cheshire Police looks unsurprising. Mr Furlong applied to be a police constable in the 2017/18 Cheshire Constabulary recruitment process, one of 675 applicants (65.8% male, 34.2% female; 4.6% BME; 9.2% LGBT; and 5% disabled; [94]).

He passed a hard sift of the applications, a competency-based questionnaire and a motivation questionnaire (the first stage of the process). By this stage he was one of 211 remaining. He then passed an Assessment Centre which involved a competency interview, numerical reasoning test, verbal reasoning test, written exercises and interactive exercises and was consequently invited to an interview (the third stage) which he passed, along with 126 others (60.6% male, 39.4% female; 6.3% BME; 13.4% LGBT; and 5.5% disabled).

The Tribunal found that '[t]he claimant’s performance was a relatively strong one at interview but not the strongest' (at [89]), but he was told that 'he was unsuccessful and put on hold as there were not enough vacancies for all who were said to have passed at that stage' (at [42]). The constabulary sought to apply section 159 on the grounds that the interview stage was assessed on a pass/fail basis and so they could prioritise among the 85 vacancies applicants with characteristics which were underrepresented in the Force. 

The Tribunal found that Cheshire Police’s mistake was to be too blunt in their application of Section 159. They had sought to take other measures such as targeted adverts, workshops, seminars and promotional events as well as buddying schemes ([70]-[74]) under section 158, but when it came to section 159 they had ignored the advice from the Government Equalities Office that artificially low thresholds should be avoided (p.9). As noted by the Tribunal, the government guidance to employers stated '[i]f one candidate is superior to another the position should be offered to that candidate. If the pass mark in an assessment is set at 70% and one candidate scores 71% and another scores 91% it would generally be wrong to consider that just because both passed the minimum success threshold the two candidates are of equal merit' [32]. While asserting that all who passed were of equal merit, it was evident that some had higher grades than others. 

Commentary

It is true that European case law (cited above) – and common sense – suggests that absolute equality of candidates is a very hard if not impossible conception, but to have 127 candidates all being of (broadly) equal merit was something the Tribunal in Furlong v The Chief Constable of Cheshire Police struggled with and ultimately rejected, not least as there were clear qualitative differences between the candidates evidenced in writing (e.g. [110], [105]-[106], [81]). If that were not enough, once all the positive action ‘equal’ candidates had been placed, the remaining ‘equal’ candidates were prioritised according to the stage 2 assessment scores (undermining, as the Tribunal put it, ‘any argument of equal suitability’ [106]).

Of more concern, is the Tribunal’s approach to the requirement in section 159(4)(c) that the action must be a proportionate means of achieving the aim of encouraging participation or overcoming disadvantage. By holding that Cheshire Police were required to 'consider first the bedding down of their previous positive action measures' before seeking to use section 159 (at [139]), it could be said that the tribunal is respecting two streams of case law:

• first – the case law on justification within indirect discrimination (see e.g. Connolly (2017))
• second – the case law affirming the principle that derogations from the principle of equal treatment should be interpreted narrowly (e.g. Commission v Austria [54]. 

However, such an approach risks rendering the provision impotent at worst or perhaps a rare device at best. Moreover, it runs counter to the explanatory note to the provision [520] which holds that it was 'intended to allow the maximum extent of flexibility to address disadvantage and under-representation where candidates are as good as each other, within the confines of European law'. 

This case fell on the constabulary taking too broad a brush, imposing too low a threshold and ignoring their own assessment comments. It is true, as the Tribunal found, that ‘imposing an artificially low threshold would not be a proportionate response... to address the issue of a lack of diversity balance’ [at 138]. However, the ‘artificially low threshold’ undermines the case at the equal merit stage before any question of proportionality falls to be considered. Typically, in an indirect discrimination case – or a direct age discrimination case – the tribunal would consider the legitimacy of the aim and, when considering proportionality, seek to strike an objective balance between the discriminatory effect of the measure and the needs of the undertaking.

Under section 159, the legitimate aims are stated in subsection (2) and so are not really in issue; furthermore, the question of proportionality involves not just the needs of the undertaking but the needs of society in addressing the underrepresentation and disadvantage. Simply reading across from indirect discrimination could serve wider equality a disservice.

James Hand is Reader in Law at Portsmouth Law School, University of Portsmouth.