The recent focus on workforce diversity throughout organisations and in senior positions has led to an increased use of positive action legislation (sections 158 and 159 of the Equality Act 2010). The Employment Tribunal (ET) decision in Chief Constable of Cheshire v Furlong [2018] is one of the first ET judgments on positive action. The focus of this case is on a technique which a number of employers have started to consider in implementing section 159 (recruitment and promotion): the pass/fail approach.

Despite acknowledging that the Respondent had a laudable aim in using positive action to improve the diversity of its workforce, in this case the ET found that the pass/fail approach did not constitute positive action and, therefore, the steps taken by the Respondent were discriminatory.

This is a first instance decision and of persuasive value only for other ETs but, given the increasing number of queries we are receiving on positive action, in this alert we set out the points to take away from the decision for those who are looking to utilise section 159 in particular to improve diversity of the workforce.

Section 159

Section 159 allows for positive action in recruitment and promotion where it is reasonable for an employer to believe that:

• those with a protected characteristic suffer a disadvantage connected to the characteristic; or
• participation in an activity by persons with the characteristic is disproportionately low.

An employer can treat a person with a protected characteristic more favourably than someone without the characteristic when selecting for recruitment or promotion where:

• the candidates are as qualified as each other;
• the employer does not have a policy of treating people with a protected characteristic more favourably; and
• taking action is a proportionate means of achieving a legitimate aim.

The Furlong case centres on whether the Respondent was able to prove that it had complied with these provisions in adopting a pass/fail approach.

Facts

Mr Furlong, a white heterosexual male without a disability, applied for a role as a police constable as part of a recruitment drive by the Respondent. The recruitment process was made up of three stages: application form, assessment centre and then interview. Mr Furlong passed all three stages but was then told he had been unsuccessful and “put on hold” as there were not enough vacancies. Mr Furlong believed that he was better qualified than some of the candidates who had been selected and challenged the pass/fail approach that had been adopted, arguing that it was discriminatory.

Section 159 can only be used when candidates are ‘as qualified’ as each other, which presents an issue in many recruitment exercises where candidates are often allocated overall scores (which usually differ).  The Respondent decided to introduce the pass/fail mechanism to overcome this issue. During the interview stage, there was a “tick box” exercise at the end of which each candidate either passed or failed. All those who passed were considered to be of equal merit (equally “qualified”) and it was at this point that section 159 was applied.  Those candidates with protected characteristics were therefore selected over those who did not have the characteristics.

Prior to the adoption of the pass/fail approach, the Respondent had undertaken numerous steps to try to improve diversity through positive action (under section 158, which deals more generally with positive action).  These were not challenged as part of the legal process and included targeted advertising, buddy schemes, targeted seminars, recruitment workshops and promotional events. Unconscious bias training was also rolled out for those involved in recruitment and assessment. Whilst this had led to improvements, women, BAME and LGBT individuals were still underrepresented.  Data which demonstrated the lack of diversity in the Respondent’s workforce in respect of race, gender and sexual orientation was presented to the ET. The Respondent’s case was that the steps it had taken constituted positive action under section 159.

Mr Furlong argued that he was treated less favourably than candidates with certain protected characteristics despite the fact that he was better qualified. He argued that it was not true to say that all those candidates who passed the interview were of equal qualification (or of “equal merit”). He claimed that the Respondent had a policy of treating those with protected characteristics more favourably and that the action taken was not a proportionate means of achieving a legitimate aim and so the Respondent could not rely on section 159.

Findings

The ET found that Mr Furlong had been discriminated against because of his sex, race and sexual orientation. Although the Respondent acted reasonably in reaching the view that persons with certain protected characteristics were underrepresented and that they had a legitimate aim in seeking to improve diversity, the Respondent had not demonstrated that the protected groups suffered disadvantage and had not complied with section 159 in key respects.

As qualified

Although numerical scoring was not used during the interviews, the tick box process provided qualitative data about the candidates.  It was clear that the 127 candidates who passed were not all “as qualified” as each other. The ET found that the Respondent, in using a pass/fail mechanism, had put forward an artificially low threshold in order to put in place its positive action plan.

Policy

The ET found that the Respondent had a policy of treating those with certain protected characteristics more favourably than those without the characteristics. Given the size of the exercise, the ET found that the approach had all the hallmarks of a policy designed to get those who had protected characteristics across the line first, ignoring qualitative assessment.

Proportionality

When considering whether the steps taken were proportionate, it was necessary to consider the balance between the underrepresentation of those with protected characteristics and the impact of the steps taken on Mr Furlong and the other white non-disabled males who were unsuccessful. For those individuals, such as Mr Furlong, who had “passed” all stages and who were more meritorious candidates than some with protected characteristics who had been appointed, the ET found that the knock on effect of the pass/fail approach could be discontentment and disillusionment which may lead to a lack of confidence in the ability of police constables and the police force in general.

The ET applauded the attempts of the Respondent to improve diversity. However, given the improvements which were already being made to diversity through the other positive action initiatives (under section 158), applying the pass/fail rate to the large volume exercise was not found to be reasonably necessary.

The ET concluded that Mr Furlong would have been appointed as a police constable had it not been for the unlawful positive action steps which were taken and as such he had been discriminated against.

Comment

This decision highlights the tension that exists between positive action and positive discrimination and the importance of employers satisfying each part of the test under section 159. An employer only needs to reasonably think that a disadvantage is suffered or that participation in an activity by persons with the characteristic is disproportionately low. However, if challenged, the burden of proof lies with the employer as to whether candidates are as qualified as each other, whether they have a policy of treating those with protected characteristics more favourably, and whether they have a legitimate aim and the action taken is proportionate.

As the other positive action steps taken by the Respondent were having a positive impact, the ET in this case found that the more drastic pass/fail approach was premature. Instead, the ET suggested that before applying the pass/fail test the Respondent needed to:

• consider the impact of the previous positive action steps taken;
• measurably assess pass/fail in a smaller exercise first;
• not impose artificially low thresholds; and
• not ignore qualitative assessment of candidates.

It is important to note that this element of the judgment is fact specific and the ET decision does not mean that the pass/fail approach will be unlawful in all cases. Clearly, the size of the exercise and the fact that a low threshold was selected influenced the decision.  There may be scope to consider the use of the pass/fail approach but in smaller recruitment or promotion processes, or where a high pass mark is set so that the points regarding confidence in those who are selected would not apply. Further advice should be sought by employers who are considering the pass/fail approach.

It is important to note that in relation to the phrase “as qualified” the Equality and Human Rights Commission in its statutory code of practice acknowledges that a set of criteria can be established by employers which can take into account a candidate’s overall ability, competence and professional experience together with formal or academic qualifications.  An employer can also look at other qualities which would make a person suitable for a job. For example, there may be more subjective elements that come into play, such as assessing the ability to work as part of a team, and this is acceptable. 

Some employers are looking to push boundaries with positive action, frustrated at the lack of progress which has been made to date on diversity of their workforces. Positive action is controversial and this case highlights that it is open to challenge. Employers should be aware that this case is concerned with section 159 only, which deals specifically with recruitment and promotion, and not section 158, which is about positive action generally, for example offering training, networking groups, mentoring schemes and work shadowing. This decision should not deter employers from using sections 158 to 159 but instead serve as a reminder that they will need to be able to show clear evidence as to the need for positive action and that the impact on all those who will be affected has been carefully considered.

For more information on positive action, please contact Nicky Green, Marsha Thompson or Bridget Prosser.