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Case law: Employer unlawfully discriminated against white, straight, male job candidate

Employers must ensure their recruitment policies do not systemically favour job candidates with protected characteristics, such as a particular gender, sexual orientation, race or disability. However, they can operate a 'positive action plan' provided the relevant candidates are genuinely as well qualified as other candidates to do the job - or risk a discrimination claim.

April 2019

This update was published in Legal Alert - April 2019

Legal Alert is a monthly checklist from Atom Content Marketing highlighting new and pending laws, regulations, codes of practice and rulings that could have an impact on your business.

A police force aimed to improve the proportion of its workforce from under-represented groups - black and minority ethnic (BME), women, LGBT and the disabled - by preferring them over other candidates not from those groups, provided they were as well qualified as those other candidates.

It introduced a 'positive action plan' to achieve this. Positive action in recruitment and promotion is lawful provided that:

  • the individuals preferred for a job because of their protected characteristic are as well qualified for the job as anyone else;
  • the employer is not operating a specific policy of treating individuals with a protected characteristic more favourably when recruiting or promoting; and
  • the positive action is a proportionate means of achieving the legitimate aim of enabling those individuals to participate in that activity.

The positive action plan in this case filtered candidates out by requiring them to go through three stages, the last of which was an interview. Those passing the third interview stage were all treated as equally qualified for the job. Under the plan, the employer could then favour:

  • candidates with the relevant protected characteristics;
  • candidates for whom English was a second language; and
  • existing employees.

when offering jobs because the fact they had done so meant they were as well qualified as everyone else to do the job.

A white, heterosexual man applied to become a policeman during a recruitment round but, despite doing well in the three stages and passing the final interview, he was not offered a job. A total of 127 people had passed the third interview stage.

He claimed direct discrimination on grounds that candidates with certain protected characteristics under equality laws - such as gender, disability, race, nationality and sexual orientation - had been preferred over him even though they were in fact less well-qualified for the role.

The Employment Tribunal (ET) found that the employer's use of a simple pass/fail system when assessing how well a candidate had done at the final interview stage, and treating everyone who passed as equally well qualified, was flawed. The fact that significant numbers passed that stage meant a significant number of individuals were treated as equally well qualified - but it was inconceivable that so many individuals were in fact equally well qualified.

The ET also ruled that what the employer was doing amounted to a policy of treating individuals with protected characteristics more favourably, which is unlawful unless it can be justified as a proportionate means of achieving a legitimate aim.

It said that the employer's aim was a legitimate aim, but the approach taken was not a proportionate means of achieving it. The threshold above which everyone was treated as equally qualified was too low, and the employer's assessment of candidates was not qualitative enough. The employer had therefore unlawfully discriminated against the candidate who was white, heterosexual and male.

Positive action in recruitment and promotion should be distinguished from general positive action - and positive discrimination (giving someone a job just because they are of a certain gender, race, etc even if others are better qualified) - which is unlawful.

Operative date

  • Now

Recommendation

  • Employers must ensure their recruitment policies do not systemically favour candidates with specific protected characteristics such as a particular gender, orientation, race or disability - but they can operate a 'positive action plan' favouring such candidates when appropriate, if they are as well qualified as other candidates to do the job and the plan genuinely identifies that they are.

Case ref: Furlong v Chief Constable of Cheshire Police, Case No. 2405577/18

Disclaimer: This article from Atom Content Marketing is for general guidance only, for businesses in the United Kingdom governed by the laws of England. Atom Content Marketing, expert contributors and ICAEW (as distributor) disclaim all liability for any errors or omissions.

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