I was once consulted by a former banker who wanted to establish a search firm to find exclusively female candidates for financial services roles. A nice idea, I told him, but fraught with legal difficulties. I have since heard that many search consultants, particuarly in the advertising world, are given the unofficial brief that a particular role needs to be filled by a woman. While this is obviously unlawful, what can employers do lawfully to address an imbalance in its workforce? Not much says a recent case involving the police…

Where an employer reasonably thinks that “participation in an activity by persons who share a protected characteristic is disproportionately low”, s159 Equality Act 2010 permits offering a role to a candidate from an under-represented group in preference to another candidate and this is known as positive action.  Positive action is lawful only if the favoured candidate is “as qualified” for the role as the other candidates.

This criterion has always struck me as so difficult to prove that it is not worth touching with a bargepole. It would seem infinitely easier to say “this candidate performed better in interview” than “these two candidates were equally as qualified so I selected the one from the under-represented group”. The latter answer is just asking for a discrimination claim from the disappointed candidate.

And so it proved to be in Furlong v Chief Constable of Cheshire Police. The police force had put in place a plan to attract, recruit and develop BME, LGBT, disabled and female officers, each of which was an under-represented group compared to the local population served. After several rounds of establishing whether candidates were suitable, which had whittled down 675 applicants to a pool of 127 for 85 jobs, the police force attempted lawful positive action by selecting candidates from the under-represented groups first. Mr Furlong, a white, heterosexual male without a disability, who had performed well at interview, was not selected and brought a claim of discrimination.

Upholding Mr Furlong’s claim, the tribunal rejected the notion that 127 candidates could possibly been seen as of “equal merit”. The tribunal reiterated the view that the exception for positive action could only really be used as a tie-breaker.

Personally, I wouldn’t advise a client to use it, even as a tie-breaker…