Navigating positive action in recruitment

The recent case of Turner-Robson and Others v Chief Constable of Thames Valley Police addresses issues surrounding the application of positive action measures in recruitment processes, examining how far employers can go in promoting diversity without crossing into unlawful discrimination.

The three claimants were white police officers who had shown interest in an upcoming Detective Inspector position. However, the role was filled by promoting a Sergeant from a minoritised ethnic group without advertising the position or conducting a competitive recruitment process. This decision was part of the employer's strategy to fast-track officers from a minoritised ethnic group from Sergeant to Inspector. The white officers, in response, filed claims alleging direct race discrimination.

Positive Action

The Equality Act 2010 (the Act) allows for positive action measures to be taken by employers. Under the Act’s general positive action provision, organisations are permitted to take measures to help individuals with protected characteristics overcome specific disadvantages or increase their representation in certain roles or activities. The Act also includes a recruitment and promotion provision, commonly referred to as the “tie-breaker” rule.

This tie-breaker provision can be used where any employer reasonably thinks that individuals with a protected characteristic are disadvantaged or disproportionately underrepresented in the workforce.

In acting to remedy this, an employer can prioritise recruiting or promoting a candidate with a protected characteristic over one without a protected characteristic if:

• The candidate with the protected characteristic and the one without are “equally qualified”,
• There is no policy of treating people with a protected characteristic more favourably (ie there must be an objective assessment of the candidates’ qualifications, rather than applying a blanket policy), and
• Taking action is a proportionate means of achieving a legitimate aim.

It is important to note that this provision does not permit an employer to appoint a less suitable candidate because they possess a protected characteristic; doing so would cross the line into positive discrimination. Positive discrimination occurs when a candidate is favoured based solely on their protected characteristic, regardless of suitability, and is not permitted under the law.

Instead, all suitably qualified candidates must be assessed on their individual merit, even where there is evidence of underrepresentation or disadvantage in the organisation. As a result, it is essential that employers conduct a thorough and competitive recruitment process to accurately evaluate each candidates’ qualifications, skills and suitability for the role.

Tribunal Decision  

The Tribunal upheld the complaints of race discrimination, finding that the actions taken were not a proportionate means of achieving a legitimate aim. Evidence showed that the sergeant in question had a strong likelihood of securing the position based on her own merit, making it unnecessary to create a strategy to ensure her appointment. Additionally, the Tribunal held that the police failed to conduct an equality impact assessment, which might have highlighted potential issues with the approach taken.

This case serves as an important reminder that while employers should actively address diversity in recruitment, they must carefully adhere to legal standards. The outcome underscores the importance of thoughtful, well-implemented diversity initiatives and illustrates the potential repercussions of failing to execute these measures correctly.

For more suggestions about how to use positive action lawfully, see our blog Diversity in the workplace: Dos and don’ts of positive action.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, November 2024