Candidate rejected because he was a white, heterosexual male wins discrimination case

A police force that rejected a potential recruit because he was a white heterosexual male has been found guilty of discrimination by an employment tribunal.

Facts

The Claimant applied to join Cheshire Police. Although he passed an assessment centre and was informed that he ‘could not have done more’ at his interview, he was told that his application to become a police officer was unsuccessful.

He believed this was because Cheshire Police followed a policy of preferring candidates with different ethnicity, gender, sexual orientation and disability but it did so unlawfully because those candidates were not as well qualified as he was.

Claim

The Claimant brought an employment tribunal claim for direct discrimination on the grounds of his sexual orientation, race and sex.

Cheshire Police’s defence was that they had applied a positive action measure in line with the Equality Act 2010 to promote diversity in its workforce.

ET decision

The ET upheld the Claimant’s claim that he had been discriminated against on the grounds of his sexual orientation, race and sex.

The tribunal ruled that Cheshire Police had used ‘positive action’ in a discriminatory way. Positive action should only be used as a ‘tie-break’ to distinguish between candidates equally qualified for the role. As there were wide variances in the candidates’ scores, the tribunal did not accept Cheshire Police’s argument that the candidates were ‘as qualified as each other’, which entitled it to choose a candidate with characteristics underrepresented among its police officers.

Furlong v The Chief Constable of Cheshire Police

Comment

Positive action permits employers to choose job applicants from under-represented groups provided they are as qualified for the role as other applicants. It does not justify selecting someone because of, for example, their sex or race, regardless of their ability to do the job. This would breach the Equality Act.

Cheshire Police had not demonstrated the necessary legal justification to apply positive action.

This case shows that whilst positive action can be used in recruitment, it should be applied only when candidates are of equal merit. Failure to do this can result in discrimination.

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