Positive action to increase diversity must not amount to discriminatory treatment

In February, the Liverpool Employment Tribunal heard that Cheshire Police had not given a job to an individual because he was white, male and heterosexual, due to the Police force’s diversity drive at the relevant time.

Mr Furlong, the applicant, was told at interview that he could not have done any more. Ultimately, he was denied the role on discriminatory grounds, and the force’s claim that 127 candidates were all equally suitable for the role of police constable was ruled to be a “fallacy”. Mr Furlong was therefore successful in his claims, and the matter was listed for a remedy hearing later in the year. However, a settlement has now been reached and Mr Furlong will join the force as a student officer from September.

Whilst increasing diversity across all sectors is important and Cheshire Police only had good intentions in this recruitment drive, positive discrimination is only ever lawful when a decision needs to be made between candidates of equal merit, in a “tie-breaker” scenario. Positive discrimination should only ever be used carefully and correctly to ensure that the starting point is that employers recruit based on merit and then only other factors when all candidates are equally well qualified for a role.

If you have any questions following this decision or on the use of positive discrimination generally, or wish to discuss ways you can increase diversity in your organisation, please contact us.