· Features

A negative outcome for positive discrimination?

Individuals are rarely totally 'equal' and so the decision to reject a candidate if they don't fit positive discrimination criteria is a risk that few employers have wished to take so far

The legal position

Positive discrimination is more in the news these days. With the advent of gender pay gap reporting many employers have announced plans to improve their statistics.

One way would be to go beyond the general provisions and take into account the gender or other protected characteristic of the person being appointed. English law permits this approach only in limited circumstances.

More on diversity:

Is positive action always a positive thing?

Rethinking workplace diversity

What's wrong with D&I?

The Equality Act 2010 section 159 sets out the circumstances in which positive discrimination is permitted in relation to recruitment and promotion. Firstly, the action must be a proportionate means of achieving the aim of overcoming the low participation or the relevant disadvantage. Secondly, the people being considered must be 'as qualified' as each other.

Finally, there must not be a policy of treating persons who share the protected characteristic more favourably. It is these latter two conditions that cause problems.

Very recently we had the first reported English case on positive discrimination under section 159. Furlong v chief constable of Cheshire Police is a 2018 tribunal case that neatly encapsulates the problems facing employers that wish to discriminate positively.

The claimant was a white heterosexual male who was unsuccessful in his application to be a police constable. The police had interviewed a selection of candidates and the 127 who passed the interview were all deemed to be equal. In reliance on section 159 the police then proceeded to offer positions to the underrepresented minorities.

The tribunal could not see how 127 candidates could be of equal merit. The notes from the claimant's own interview show that he was viewed as a strong candidate while others who received some negative feedback still went on to pass. On that basis the tribunal said that the claimant would have succeeded if positive action had not been applied. This decision is not being appealed.

There is no guidance as to when individuals are to be treated as equal. The term 'equal' is not the same as 'identical'. Therefore there must be some discretion for an employer to say that a quality in one area (e.g. experience) is offset in one candidate by a quality in another area (e.g. skillset) and overall they are equal. But the reality is that individuals are rarely totally 'equal' and so the decision to reject a candidate in reliance on section 159 is a risk that few employers have wished to take so far.

Practical points for employers

Employers need to consider whether there is a demonstrable need for improvement in the representation of, for example, women at senior management levels.

Secondly, are there alternatives to positive discrimination that an employer can safely take; such as shadowing, internships and mentoring for underrepresented groups?

Thirdly, the employer needs to be clear if it is going to argue that candidates are 'equal' how it has come to that conclusion.

However, the key decision for an employer is whether it is going to be overt in its use of positive discrimination or covert. Covert reliance might seem less risky.

However, if the employer's reliance on section 159 only comes out when a disappointed candidate complains, this may cast the employer in a bad light and therefore a tribunal is less likely to be sympathetic. Secondly, many employers will want to demonstrate their commitment to diversity overtly by taking positive steps. There will clearly be further legal cases to follow Furlong v chief constable of Cheshire Police.

Nick Robertson is head of the employment team in London and Clare Shears is a paralegal at Mayer Brown