Positive action v positive discrimination: how to avoid crossing the (thin blue) line

To what extent can employers appoint or promote someone because they have a protected characteristic that is under-represented in their organisation? Jo Moseley analyses a recent Employment Tribunal ruling involving a police force.

In Turner-Robson and others v The Chief Constable of Thames Valley Police, an employment tribunal had to decide if the appointment of an Asian officer without a competitive interview was positive action (and permitted under the Equality Act) or amounted to positive discrimination which was not.

Facts

In August 2022, a job vacancy for a Detective Inspector became available. A job description was prepared ready to be advertised. The first claimant expressed an interest in applying for the role and was told it would be advertised ‘imminently’. 

The job was not, in fact, advertised and was given to Police Sergeant Sidhu without a competitive process as part of the Police Force's black Asian minority positive progression process (PAPP).

The first claimant asked for clarity around the decision making and questioned whether it was compatible with a number of internal policies and the Equality Act 2010. The Superintendent who appointed Sidhu told him that the appointment was a ‘lateral move’ and, therefore, did not amount to unlawful positive discrimination. The first claimant asked a number of additional questions, including whether this was, in fact, a lateral move (as the successful candidate was not, at that time, an inspector and therefore didn't have the necessary qualifications to apply for the role) and questioned how he could compete for a post going forward. The Superintendent sent a curt response which did not address the questions he had raised. 

The first claimant and two colleagues brought claims under the Equality Act. They argued that they had not been able to apply for the role because of their race (they were all white British) and this amounted to direct discrimination. 

Law

Positive discrimination is unlawful. Employers can, however, take ‘positive action’ to help individuals with a protected characteristic who are either disadvantaged or under-represented in their workplace. These rights are set out in ss158 and 159 of the Equality Act 2010.  

Section 158 gives employers the scope to take general positive action and s159 empowers them to take positive action when recruiting and promoting individuals. 

Tribunal decision

The Chief Constable argued that appointing Sergeant Sidhu was an act of positive action pursuant to s158 and their actions were a proportionate means of achieving a legitimate aim of enabling or encouraging persons from minority ethnic backgrounds to reach senior ranks. The Chief Constable denied that their actions fell under 159 because she had not been recruited or promoted. 

The tribunal found that Sergeant Sidhu's appointment was a promotion: it was a higher rank and she received a pay increase and additional pension benefits. At the time she was promoted she did not have the appropriate status (although she was due to be promoted to an inspector in a different role which she didn't take up).   

It heard evidence that the Superintendent had been told by her superior to “make it happen” and she had done so without thinking through the consequences. In doing so, she had gone against the Thames Valley Police's own procedures (which required all internal posts to be advertised) and had “jumped the gun” by promoting her whilst she was still a Sergeant. 

This meant that s159 was engaged. The tribunal made the point that it didn't matter whether it was a lateral move, transfer or promotion. Appointment to a vacant job that had been ear-marked for recruitment is recruitment and the police force could only have selected Sidhu if, during a competitive exercise, she had scored the highest marks or there was a tie-break situation involving her. 

The claimants had been discriminated against on the grounds of their race because they were not able to apply for the role even though they were better qualified than Sergeant Sidhu. This amounted to less favourable treatment and the approach taken was not a proportionate means of achieving a legitimate aim.

Separately, the tribunal criticised the ‘cavalier approach’ displayed by the Chief Constable who admitted that the force had not undertaken an equality impact assessment ahead of the decision to appoint Sergeant Sidhu and said it was astonished by the lack of equality and diversity training received by the decision makers (which hadn't been repeated for over 20 years in one case!)

Lessons for other employers

It is worth remembering that aside from the duty to make reasonable adjustments for someone with a disability, private sector employers do not have to take positive action to address under-representation in their workforces. 

By contrast, public sector employers have duties under the Equality Act to advance equality of opportunity between people who share a protected characteristic and those who do not. Public sector employers, like the police, are therefore far more likely to take positive action to promote change. 

The Equality Act does not limit the types of action employers can take under s158. Options include:

• setting targets for increasing participation by the targeted group;
• providing bursaries for targeted groups to obtain qualifications;
• raising awareness of job opportunities via outreach work, networking and advertising;
• reserving places on training courses to enable under-represented individuals to progress;
• providing mentoring; and
• working with local schools and colleges and inviting students from groups whose participation in the workplace is disproportionately low to spend a day in the organisation

You can go slightly further to appoint or promote a disabled candidate under your duty to make reasonable adjustments to remove any disadvantage to that person. This might include providing and accepting information in an accessible format, such as large print or audio for candidates who have sight impairments. Some employers also operate a guaranteed interview scheme, under which they agree to interview all disabled applicants who meet the minimum requirements for the job. This does not, of course, mean that disabled candidates should be appointed ahead of other more qualified staff.

The Equality and Human Rights Commission has a Code of Practice on Employment (Chapter 12 deals with positive action) which has useful tips to help you stay on the right side of the law. 

Jo Moseley is Lead Practice Development Lawyer at Irwin Mitchell.