Positive action in recruitment: Cost of getting it wrong

Author: Jason Braier

While positive action in recruitment is laudable, and to be encouraged as a means of overcoming disadvantage and low participation, employers need to think very carefully about how they go about it, because mistakes may be costly. Jason Braier explains why.

The legal test

Section 159 of the Equality Act 2010 permits positive action in recruitment and promotion. It does so even though treating a person more favourably due to their protected characteristic conversely involves treating their competitors less favourably for not having that protected characteristic. The scope of s.159 is limited.

There are a number of hoops an employer needs to jump through to establish this defence:

• The employer must reasonably think that those with a particular protected characteristic are either disadvantaged in recruitment or promotion because of that characteristic, or have a disproportionately low participation in the activity at which recruitment or promotion is aimed (s.159(1)).
• The aim of the positive action must be to enable or encourage those with the protected characteristic to overcome or minimise that disadvantage or to participate in the activity (s.159(2)).
• Positive action in this context can be used only if the person it is applied to is as equally qualified as the person who loses out on the recruitment or promotion activity (s.159(4)(a)).
• The employer cannot have a general policy of treating those with the protected characteristic more favourably than those without it when recruiting or promoting (s.159(4)(b)).
• The action taken must be a proportionate means of achieving the aim set out under s.159(2) (s.159(4)(c)).

First employment tribunal application of the test

Furlong v Chief Constable of Cheshire Police ET/2405577/2018 is the first case in which the employment tribunal has given substantive consideration to the provisions on positive action. To date, s.159 has not been considered by an appeal court.

Mr Furlong , a white, heterosexual, able-bodied man, applied for a police constable position in the 2017/2018 recruitment drive for Cheshire Police Force. He reached the final stage of the process - the competency-based interview - and, despite passing that, he was told he had been unsuccessful and that his application had been put on hold due to insufficient vacancies. He brought a direct sex, race and sexual orientation discrimination claim against the Cheshire Police Force. The police force defended his claim on the basis that it had applied positive action measures within s.159 of the Equality Act 2010.

The police constable recruitment process

Due to demographic shortfalls in Cheshire Police Force, the police force put in place a positive action plan to attract and recruit BME, LGBT, disabled and female police constable officers. The plan started with various initiatives, including:

• targeted recruitment campaigns and familiarisation events;
• the introduction of an ally scheme and development programme;
• a comprehensive attraction plan; and
• the continuing development of the work of diversity champions to encourage applications from those from under-represented groups.

While these efforts to address the imbalance bore some fruit, there was still under-representation across a range of protected characteristics.

The police force decided to apply a positive action policy to their recruitment drive by having a simple pass/fail mark for the final interview, deeming all those who passed to be of equal merit, and prioritising those from the under-represented groups. Once all such candidates were offered places, prioritisation of remaining candidates who passed the final stage interview was determined through scores from an earlier part of the recruitment process.

What the employment tribunal held, and why

The tribunal found that the police force's approach was unlawful. In the tribunal's view, while the "low participation" gateway to using positive action in recruitment was made out, the principal problem was the way in which the police force sought to overcome the hurdle of applying only positive action where candidates were equally qualified. The pass/fail mechanism was set at an artificially low level in order to "deem" all those who passed equal.

In the tribunal's view, aside from the artificiality of suggesting that all 127 candidates who passed were equal to each other, the reversion to prioritising on a score basis for those not from the protected groups fatally undermined any assertion that all were of equal merit. There were also additional indicators in the marking of interviews from which qualitative separation of candidates could be discerned. The tribunal found that the strength of Mr Furlong's interview would have placed him near the top of the list and, in the absence of the positive action approach taken, he would have been hired. As a further consequence, the artificial approach to deeming candidates to be equal gave rise to a general policy of treating those with the protected characteristics more favourably.

When, as a matter of belt and braces, the tribunal considered proportionality, four key considerations led to the conclusion that a disproportionate approach had been taken. These were:

• the blanket nature of the policy;
• the stark effect of the policy leading to all of those placed on hold being white, male, able-bodied candidates;
• that previous measures were bearing fruit in improving representation and the police force should have considered the bedding down of those action measures first; and
• that it would have been preferable for the police force to apply positive action to a smaller recruitment exercise and measure its impact, rather than jumping to such a large exercise.

Practical lessons for employers

Given the lack of any binding case law on positive action in recruitment, and given that the loser in the tribunal was the party with the larger pockets, I would be surprised if the tribunal's decision is not appealed. However, even at this early stage in this litigation there are some valuable lessons for HR professionals to learn.

First, positive action is a legitimate means of addressing low participation in the workplace. To give one current example, the Judicial Appointments Commission applies positive action in its current process of recruiting employment judges.

Second, the requirement that the beneficiary of positive recruitment action has to be as qualified as the person who misses out cannot be fudged, glossed over or ignored. It is legitimate, in that assessment, to neutralise circumstances that of their very nature would otherwise disadvantage the under-represented group. For example, amount of experience would, by its very nature, disadvantage those from the low participation group if it was mandatory to take it into account in determining equal qualification. Recruitment processes with a positive action criterion should be set to ensure that inherently disadvantageous criteria are excluded from the means of assessment. Otherwise, the purpose of a positive action criterion may be fatally undermined.

Third, transparency of approach to comparison of qualification is to be recommended. Tribunals are unlikely to approve of processes that leave the determination of equality of qualification to the wholly subjective whim of the decision-maker. Similarly, it is important that there is some rigour behind the determination of equality of qualification as the mantra of "all are equal" is unlikely to be persuasive. As shown by Furlong, it is not hard for tribunals to see behind processes that are arranged so that they can be manipulated to achieve the desired result.

Lastly, Furlong shows the wide range of factors an employment tribunal might choose to consider when determining proportionality. Care should be taken to determine if the objective of positive action could be achieved through measures that have a less discriminatory effect. In this case, the tribunal suggested that Cheshire Police Force was having some success through measures already applied and that it should have waited a little longer for those measures to embed. I suspect that is a conclusion that might come under strenuous challenge on appeal. How long should one be expected to wait before applying more assertive measures of positive action? Is it really disproportionate to take a measure that is more likely to speed up the process of equality? Perhaps time (and the wisdom of the Employment Appeal Tribunal) will tell.