The actions of the force aimed to improve diversity among senior staff at the organisation, the tribunal heard.
But it constituted discrimination, explained Liz Sebag-Montefiore, co-founder and director of consultancy 10Eighty.
Speaking to HR magazine, Sebag-Montefiore said: “This is ‘tokenism’, and is potentially unfair to someone promoted without due process and to persons not promoted because they didn’t fit the profile.
“It’s just about the optics and doesn’t address the root causes of their lack of diversity – that they can’t or don’t attract, recruit, train and retain people of colour, or whatever protected characteristic they are trying to encourage. It’s that failure that needs to be addressed.”
Gemma Clark, employment lawyer at law firm Wright Hassall, told HR magazine that employers could ensure they remain compliant during the promotion process by understanding the difference between positive discrimination and positive action.
Read more: Wanting to ‘hire fewer white men’ not discrimination, tribunal finds
She said: “Employers can remain compliant when promoting employees by understanding the difference between positive discrimination and positive action, only the latter one being lawful.
“Positive discrimination involves selecting individuals based on their belonging to an underrepresented group, sometimes at the expense of merit. As demonstrated by this case, it exposes employers to discrimination claims for which compensation is uncapped.”
“Positive action aims to remove barriers and provide equal opportunities. However, employers must ensure that this is implemented lawfully, and that they do not unfairly disadvantage other groups in the process, as this could then result in positive discrimination.”
The force created a job advert for a detective inspector role in the priority crime team in August 2022. An inspector who had worked at the force for 19 years, Phillip Turner-Robson, expressed an interest for the job on the same day that the advert was posted.
But the person responsible for hiring was told to move Sergeant Sindhu to the role, before a competitive assessment process had taken place or the vacancy was advertised to staff, the tribunal heard.
The tribunal ruled that this constituted positive discrimination as it “went beyond mere encouragement, disadvantaging those officers who did not share Sergeant Sidhu’s protected characteristic of race and who were denied the opportunity to apply for the role”.
“HR must ensure a fair and transparent promotion process is consistently applied across all functions,” said Fiona McKee, founder of consultancy the HR Practice, speaking to HR magazine.
Read more: When does DEI in recruitment become discriminatory?
“Even the most well-designed process will be ineffective if managers are not properly trained and assessed on their ability to implement it. Therefore, it's essential for HR to review documentation to confirm that the process has been applied fairly before any promotions are announced.”
Employers should work with employees throughout the employee lifecycle to improve diversity at senior levels, McKee added.
She continued: “A diverse workforce brings a wealth of perspectives and ideas, enhancing decision making and driving better business outcomes. While promotions can be a tool to increase diversity at senior levels, it's important that if diversity is part of the promotion criteria, this is clearly communicated to encourage applications from a wide range of candidates.
“HR plays a key role in identifying and nurturing top talent from all backgrounds, through succession planning and development opportunities ensuring that underrepresented groups have equal opportunities to progress within the organisation.”
