UK: Diverse Discrimination

Last Updated: 26 July 2019
Article by Paul McFarlane

Police Force acted unlawfully when to trying to use 'positive action'

In the first case of its kind, in Furlong v Chief Constable of Cheshire, an Employment Tribunal (ET) found a police force's recruitment process had directly discriminated against a white, heterosexual, male applicant.

The claimant, Mr Furlong, a white heterosexual male applied for a position as a Police Constable in the 2017/18 recruitment process with the respondent, Cheshire Constabulary. The recruitment process comprised three stages: an application form to check candidate eligibility; a 'sift' stage, consisting of a competency interview and various written and interactive exercises; and, finally, an interview stage for all candidates who had successfully passed the 'sift'. In 2017/18, a large cohort of 127 candidates progressed to interview. At this final stage, the respondent applied 'positive action,' appointing first any candidates with protected characteristics before selecting from the pool of remaining applicants.

Despite passing the 'sift' and appearing to perform well at interview, Mr Furlong did not secure an appointment. He brought claims of direct discrimination on the grounds of sexual orientation, race and sex, alleging that the respondent had unlawfully treated candidates with protected characteristics more favourably than himself, when they were less qualified for selection. The respondent contended that it had lawfully applied positive action measures in the Equality Act 2010 to boost recruitment from underrepresented groups.

The ET heard evidence that between 2015 and 2018 the Police Force had also put in place other measures to increase diversity for example holding events with north west employers to support and develop applicants from diverse communities. This resulted in the percentage of black, Asian and minority ethnic (BAME) officers in Cheshire, more than doubling: from 0:61% to 1.46%. This against BAME population in Cheshire of 3:09% in 2018.

More generally, police forces nationally had increased the percentage of officers from BAME backgrounds from 2% in 1999 to 5.5% in 2015 (compared with 14% of the wider population coming from BAME backgrounds).

The ET accepted it was a legitimate aim for theforce to wish to improve minority representation. However, the Police Force had not, in this case, used 'positive action' as a 'tie-breaker'. Rather than selecting between equally qualified candidates, the ET found that the force had applied a 'policy' of preferring candidates with protected characteristics (including race), which is prohibited by legislation.

Mr Furlong had performed comparatively well at interview and had received positive feedback. The ET was persuaded that, but for the inappropriately broad application of positive action principles, he would have successfully secured a post.

This case was only decided at ET level and therefore other tribunals are not bound to follow it. However, it may, understandably put off employers from using 'positive action' as a tool to make their workforces more diverse. This would be very disappointing given the business imperative to improve diversity and inclusion in the workplace.

The Women and Equalities Select Committee publishes its submission on extending redundancy protection for women and new parents. The Select Committee commented that, despite publishing its own report back in 2016 which showed, each year, 54,000 pregnant women and mothers faced discrimination and poor treatment, "..there were little signs of improvement".

The Select Committee recommended the government should:

  • take action regarding the prohibitively short three month time limit for bringing an employment tribunal claim, despite significant public and parliamentary support for extending the time limit. It would like the time limit for bringing claims to be extended to six months
  • extend protection to those on shared parental and adoption leave but called for clarity on what forms of longer parental leave would qualify (in consultation with relevant stakeholders) to set up a single comprehensive website for employers and individuals, and to work with the General Medical Council and National Midwifery Council to ensure frontline health professionals can provide basic advice and signpost women to further information and resources.
  • recommend that large companies should be required to report on retention rates for women 12 months after returning from maternity leave and 12 months after lodging an application for flexible working.

Appointment of 54 Salaried Employment Judges/measures to boost judicial diversity
The Lord Chancellor has recently announced the appointment of 54 full time equivalent Employment Judges. These judges will take up their posts this autumn. Separately applications for 50 part-time Employment Judges have now closed. That selection process is due to be completed in February 2020.

This follows a survey of the members of the Employment Lawyers Association in April 2018 where 45% of respondents said they had experienced postponement of a hearing due to lack of judicial resource. Anecdotally, matters appear to have got worse so the appointment of these judges is welcome news.

Postponed hearings are costly for all sides. It is extremely rare for the Tribunal system to reimburse some, if any, of the costs a party has incurred preparing a case for hearing which at the last minute is postponed due to lack of judges. this is not to mention the time, expense and emotion expended by witnesses preparing for a hearing.

Finally, in the first joint initiative between government, the judiciary and the legal professional bodies, a Pre-Application Judicial Education (PAJE) programme has been launched to help lawyers from underrepresented backgrounds develop their understanding of the role and skills required of a judge, before they apply. This will be delivered through a mixture of online resources and discussion groups led by judges, allowing participants to explore perceptions of the barriers to a judicial career. 

Commenting on this initiative the Lord Chancellor, David Gauke said: "Encouraging diversity is important in fostering a legal system that better reflects and represents the range of voices in our society. The PAJE programme is a positive step forward to support lawyers from all backgrounds, including those from underrepresented groups as they aspire towards a judicial career. We are strengthening our world-renowned justice system by drawing on a greater diverse range of knowledge and expertise". 

Paul McFarlane is a Partner in employment, pensions and immigration, Weightmans LLP

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions