In Turner-Robson and others v Chief Constable of Thames Valley Police, an Employment Tribunal has held that the appointment of a minority ethnic Sergeant to a Detective Inspector role without any competitive recruitment process was positive discrimination
Under the Equality Act 2010 (“EQA 2010”), an employer unlawfully directly discriminates against an employee if it treats them less favourably because of a protected characteristic. Race (including colour, nationality and ethnic or national origins) is one of the nine protected characteristics under the EQA 2010.
Section 158 of the EQA 2010 allows employers to take ‘general positive action’ to enable or encourage employees who share a protected characteristic to overcome or minimise a disadvantage they suffer in connection with that protected characteristic, or to participate in an activity in which they are disproportionately underrepresented.
Section 159 clarifies that the right to take positive action also applies to recruitment and promotion decisions, but only where employees are equally qualified, the employer has no general policy of treating employees who share the protected characteristic more favourably, and the action taken is proportionate.
The facts of Turner-Robson and others v Chief Constable of Thames Valley Police (“TVP”) are as follows. Three white police officers expressed their interest in a vacant Detective Inspector position. Without the position having been advertised or any competitive recruitment process, a minority ethnic Sergeant was moved into the role. The three white police officers brought claims for direct race discrimination.
TVP’s reasoning for moving the minority ethnic Sergeant into the role was that this was in accordance with their ‘Positive Action Progression Program’ (“PAPP”), which involved fast-tracking minority ethnic officers who met certain conditions to help them reach the rank of Chief Inspector. It argued that this was general positive action under section 158 of the EQA 2010, as opposed to positive action in recruitment and promotion under section 159.
The tribunal upheld the direct race discrimination claims; the white police officers were denied the chance to apply for and be considered for the vacancy, which amounted to less favourable treatment than the minority ethic Sergeant because of their race.
In respect of positive action, the tribunal held that TVP’s action plainly related to section 159 (positive action in recruitment and promotion) rather than being general positive action, as it was concerned with appointing someone to fill a vacancy. However, TVP’s actions went beyond lawful positive action; it could not show that it was acting proportionately, since there was a good chance that the minority ethnic Sergeant would have secured the role anyway had a competitive recruitment exercise been followed.
The tribunal noted that TVP should have carried out a balancing exercise to determine whether its action was proportionate, and that it had failed to carry out an equality impact assessment in relation to the PAPP. The tribunal also commented that the decision-makers clearly lacked sufficient equality and diversity training.
Although this is an Employment Tribunal decision, meaning that other tribunals will not be bound by it, this case acts as a reminder of the distinction between lawful positive action and unlawful positive discrimination. Employers seeking to rely on positive action in recruitment or promotion decisions should tread carefully and take advice on whether equality impact assessments and/or competitive recruitment exercises are necessary before any decisions are made.
Employers should also ensure that all employees are receiving tailored equality and diversity training. The provision of appropriate training in this area will become even more important when the new duty to prevent sexual harassment in the workplace comes into force on 26 October 2024.
If you would like advice on a discrimination claim or you are an employer and you would like advice on discrimination risks and ensuring that your policies, practices and decisions are not discriminatory against any protected characteristic, please get in touch at [email protected].
