In the case of Turner-Robson and others v Chief Constable of Thames Valley Police, the Employment Tribunal determined that promoting a minority ethnic Sergeant to the role of Detective Inspector without holding a competitive recruitment process amounted to positive discrimination. This ruling was grounded in the Equality Act 2010 (EQA 2010), which prohibits direct discrimination against individuals based on protected characteristics like race.
Legal framework
Equality Act 2010
Under the EQA 2010, direct discrimination occurs when an individual is treated less favourably because of a protected characteristic. Race, which includes colour, nationality, and ethnic or national origins, is one of the nine protected characteristics under the Act. Section 158 of the EQA 2010 allows for 'general positive action' to help individuals overcome disadvantages or participate in activities where they are underrepresented. However, Section 159 specifies that positive action in recruitment and promotion is only permissible when candidates are equally qualified, and the action is proportionate and not part of a general policy of favouring individuals with protected characteristics.
Tribunal findings
Lack of competitive process
The Tribunal found that the Thames Valley Police had not conducted a competitive recruitment process for the Detective Inspector role. Instead, the position was filled through the BAME Progression Program, which aimed to fast-track minority ethnic officers. This decision was made without an equality impact assessment or a balancing exercise to determine whether the action was proportionate. The Tribunal concluded that this approach went beyond lawful positive action and amounted to positive discrimination, disadvantaging officers who did not share the protected characteristic of race.
Proportionality and training
The Tribunal also noted that the decision-makers lacked sufficient equality and diversity training, which contributed to the unlawful nature of the action. The lack of a competitive process and the failure to conduct an equality impact assessment were critical factors in the Tribunal's decision to uphold the claims of direct race discrimination.
Practical steps for employers
Conduct competitive recruitment processes
Employers should ensure that all recruitment and promotion processes are competitive and transparent. This includes advertising positions internally and externally and conducting thorough assessments of all candidates.
Equality impact assessments
Before implementing any positive action measures, employers should conduct equality impact assessments to evaluate the potential effects on all employees and ensure that the actions are proportionate.
Training and awareness
Employers should provide comprehensive equality and diversity training to all decision-makers involved in recruitment and promotion processes. This training should cover the legal distinctions between positive action and positive discrimination.
Documentation and monitoring
Maintain detailed records of all recruitment and promotion decisions, including the rationale for selecting candidates. Regularly review and monitor the impact of positive action measures to ensure they remain proportionate and effective.
Additional considerations
Related cases
The case of Furlong v Chief Constable of Cheshire Police also highlights the fine line between lawful positive action and unlawful positive discrimination. In this case, the Tribunal found that Cheshire Police had unlawfully discriminated against a white, heterosexual male by using an artificially low threshold to deem all candidates equally qualified, thereby favouring those with protected characteristics.
Legislative compliance
Employers must ensure that their positive action measures comply with the EQA 2010. This includes adhering to the specific conditions outlined in Sections 158 and 159, ensuring that any preferential treatment is proportionate and not part of a general policy of favouring individuals with protected characteristics.
By following these guidelines, employers can promote diversity and inclusion in the workplace while avoiding the pitfalls of positive discrimination.
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