Positive discrimination: new ET case emphasises the importance of a competitive recruitment process
An employment tribunal has found that a decision by the police force to appoint a minority ethnic Sergeant to a Detective Inspector role without undertaking any competitive recruitment process was unlawful positive discrimination.
The line between what amounts to lawful positive action and unlawful positive discrimination is not always clear (read more about this grey area here). Even though each case is fact and context sensitive, when an employment tribunal judgment discussing positive discrimination is published, it is always helpful to consider the tribunal’s analysis and application of the legal framework.
In Turner-Robson and others v Chief Constable of Thames Valley Police, three white British police officers expressed an interest in a vacancy for a new Detective Inspector role. However, the respondent did not advertise the role internally or follow any competitive recruitment process for the role. Instead, it moved an ethnic minority Sergeant into the vacant Inspector role, resulting in the claimants bringing claims for direct race discrimination.
The respondent contended that it had moved the individual to the Inspector role in accordance with its positive action progression programme, which it believed amounted to positive action within the meaning of section 158 of the Equality Act 2010 (i.e. general positive action – not positive action at the recruitment or promotion stage under section 159).
A reminder of the law
Positive action allows an employer to take certain actions to enable or encourage those with a particular protected characteristic to overcome or minimise a disadvantage, to meet their particular needs, or to enable or encourage them to participate in an activity where they are disproportionately underrepresented. It exists in two forms under the Equality Act 2010:
(i) general positive action (section 158); and
(ii) positive action in recruitment and promotion (section 159).
Whatever action is taken must be a proportionate means of achieving a legitimate aim.
Although there is no legal definition of ‘positive discrimination’, it can be described as the giving of preferential treatment to members of a particular disadvantaged or underrepresented group, without consideration of merit (i.e. preferential treatment solely because of a protected characteristic). Irrespective of good intentions, positive discrimination is unlawful discrimination in the UK unless a statutory exemption applies.
The tribunal’s findings
The tribunal found that the respondent’s actions clearly fell to be considered under section 159 of the Equality Act, as an attempt to carry out positive action at recruitment or promotion rather than under the section 158 “general” positive action exemption. Whilst the respondent sought to argue its “move” of the individual to the Inspector role was not a promotion, the tribunal held that this was clearly an appointment of an individual to a job vacancy and it did not matter whether it was a lateral move, transfer or promotion.
Having identified which section the action should be considered under, the tribunal then needed to consider whether the relevant exemption permitting positive action had been made out. The tribunal found the respondent’s failure to carry out any competitive process was not a proportionate means of achieving a legitimate aim. Such action went beyond mere encouragement and disadvantaged officers who did not share the same protected characteristic and were denied the opportunity to apply for the role.
The importance of policies, rationale and training
Whilst the tribunal unanimously reached a finding of direct discrimination and the facts of the case were not contentious, the tribunal did raise a number of points relating to the importance of policies and D&I training which are useful reminders for employers taking positive action measures. In particular:
- The tribunal found the decision to appoint the individual to the Inspector role without a competitive process went against the respondent’s own procedures and was contrary to its D&I policies and guidance. It further criticised the respondent for seeking to rely on an ethnic minority progression program which was not even in place at the relevant time the decision to move the individual to the Inspector role was made.
- The tribunal noted its surprise that the respondent had not attempted to carry out any equality impact assessment, describing the respondent’s approach as “rather cavalier”.
- The tribunal also looked at the D&I training undertaken by key decision makers and found the lack of such training to be “astonishing”.
Further guidance on this area
DEI: Where now? Navigating a safe legal path in challenging times is our thought leadership series by the Linklaters Diversity Faculty, providing insights, commentary and guidance for employers on the most complex and technical areas of UK law, regulation and governance on DEI issues. The series includes a guide with a practical overview of the differences between lawful positive action and unlawful positive discrimination and explains how employers can navigate the grey area and promote diversity, equity and inclusion whilst staying on the right side of the legal line.
Visit our webpage to access the resources, and if you have any queries or would like to discuss these issues further, please get in touch.
