The important distinction between positive action and positive discrimination

A recent Tribunal case has highlighted the importance for employers of knowing the difference between positive action and positive discrimination.

The case of Turner-Robson & Others v Chief Constable of Thames Valley Police

In Turner-Robson & Others v Chief Constable of Thames Valley Police, the Tribunal found that the police force’s positive action scheme had actually resulted in the discrimination of three white police officers. The scheme’s aim was to fast-track minority ethnic officers from Sergeant to Inspector.

In that case, a job vacancy for a Detective Inspector role was offered to a minority ethnic employee without a competitive process. The role was not advertised before it was given to the successful employee, meaning that the claimants in the case, three white officers, had no opportunity to apply. This was despite those three white officers previously expressing an interest in the impending vacancy.

Section 158 of the Equality Act contains a general power for employers to take positive action to address the disadvantages experienced by people with a shared protected characteristic in the work context (subject to the action being a proportionate means of achieving a legitimate aim).

Section 159 of the Equality Act 2010

However, the ET found that section 159 of the Equality Act 2010, which deals specifically with positive action in recruitment and promotion, applied here. It did not matter whether it was a lateral move, transfer or promotion for section 159 to apply.

Section 159 of the Equality Act sets out more specific restrictions on when positive action can be used.  This states that an employer can treat an individual with a protected characteristic more favourably in connection with recruitment or promotion, as long as:

• The employer reasonably believes that those who share the particular protected characteristic suffer a particular disadvantage or are dis-proportionately under-represented;
• The action is a proportionate means of minimising that disadvantage or improving participation;
• The employer does not have a general policy of treating those with particular protected characteristics more favourably in connection with recruitment or promotion; and
• The individual with the particular protected characteristic is “as qualified” as the comparator to be recruited or promoted.

In this case, it was found by the Tribunal that the Sergeant who was slotted into the role would have had a very good chance of being successful in applying for the post on her own merit, and so slotting her into the role without a competitive process was unnecessary and was also found not to be a proportionate means of a achieving a legitimate aim. The Tribunal was also particularly critical that the Force had failed to conduct an Equality Impact Assessment.

In its focus on ensuring the scheme was successful, the Force’s actions went beyond what would have been appropriate under section 159 and instead were found to be positive discrimination.

The Force also came under fire for its lack of Equality, Diversity, and Inclusion training (with its last training being 21 years previously!), which is another reminder to employers to ensure that they remain up to date with these training programmes for their employees.

Implications for employers

Whilst the intentions of the Force’s scheme were positive, the way that the scheme was implemented crossed the line between positive action and positive discrimination. The case serves as a reminder to employers of:

• The need for transparent and competitive processes, even when the process involves positive action initiatives;
• The importance of conducting Equality Impact Assessments and considering the results;
• The need for up to date Equality Diversity and Inclusion training for employees; and
• The importance of considering actions carefully, including the proportionality of a proposed action in achieving what may be a very legitimate aim.

Contact us

Rachel Levine is a solicitor in our employment law team. If you have any questions or concerns related to the points raised in this article, or have an employment law query we can help with, please get in touch.