In the case of Turner-Robson and others v Chief Constable of Thames Valley Police, three white British police officers brought claims for positive discrimination. This was after their Asian colleague was promoted to detective inspector without any competitive recruitment process. The Employment Tribunal ruled that this constituted direct discrimination against the white officers which is unlawful under the Equality Act.
In this article, we consider the facts of this case and the tribunal’s findings and judgment. We also discuss what constitutes positive discrimination and how employers can ensure compliance with equality laws in this regard.
Positive Discrimination: Facts of the Case
The claimants in this positive discrimination claim were Phillip Turner-Robson, Kirsteen Bishop, and Graham Horton, all white British officers. Each had been employed by the Thames Valley Police Force for at least 20 years. Plus, they had considerable experience in their various roles. Ms Sidhu is of black Asian origin and was, at the time, a police sergeant within the force.
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In August 2022, a detective inspector vacancy was supposed to be advertised internally, to which Mr Turner-Robson expressed potential interest. He was told that the role would be advertised imminently, so he would have the opportunity to apply for consideration.
However, it was never advertised and instead, the then Police Sergeant Sidhu was appointed for the position. No competitive process was undertaken, and no alternative candidates were considered. On questioning this decision, Mr Turner-Robson was told that it was part of the force’s BAME positive progression process. Hence, the lateral move of BAME employees was permitted as a positive action.
Mr Turner-Robson, Ms Bishop, and Mr Horton brought claims of direct race discrimination. They argued that, in not having been given the opportunity to apply for the role, they had been treated less favourably because of their race.
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The Employment Tribunal’s Judgment
This direct race discrimination claim was heard at the Norwich Employment Tribunal by Employment Judge Postle. The tribunal considered whether Ms Sidhu’s appointment to the role of Detective Inspector constituted positive discrimination or positive action.
Whilst positive discrimination is unlawful under the Equality Act, positive action is permitted under sections 158 and 159. Positive action, in this context, means actions taken to minimise the disadvantages of those protected characteristics. However, section 159 prohibits more favourable treatment of a person with a protected characteristic in the process of recruitment.
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The Thames Valley Police argued that its actions constituted positive action. It further argued that section 159 did not apply because Ms Sidhu’s appointment to the position of Detective Inspector had been a lateral move rather than a promotion.
Under section 39(2) of the Equality Act, there is a prohibition on employers discriminating against employees “in the way [the employer] affords [the employees] access, or by not affording access, to opportunities for promotion, transfer or training or for receiving any other benefit, facility or service.”
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The tribunal found that the Thames Valley Police had breached section 39(2) of the Equality Act. Mr Turner-Robson, Ms Bishop, and Mr Horton had not been afforded access to the detective inspector opportunity. In denying this opportunity, the Thames Valley Police had directly discriminated against the claimants because of their race.
The actions did not constitute positive action because they were prohibited under section 159. In its decision, the tribunal highlighted the importance of regular equality training for managers and HR staff. It also expressed “astonishment” that no such training had been provided for some staff within the Thames Valley Police for 21 years.
What Is Positive Discrimination?
Under the Equality Act, direct discrimination occurs when a person is treated less favourably than another because of one of nine protected characteristics. These include age, disability, gender reassignment, marriage and civil partnership, pregnancy etc.
Positive discrimination, on the other hand, occurs when a person is treated more favourably. This might be the case if, for instance, an employer chooses to hire a particular candidate because they are disabled, rather than based on their merits or qualifications.
Positive discrimination is unlawful in the UK as it automatically results in discrimination for somebody else. In this scenario, for instance, other candidates would have been treated less favourably because they were not disabled, regardless of whether they were better suited to the role.
Positive Action vs Positive Discrimination
It can sometimes be difficult to distinguish positive discrimination from positive action. Positive action is the process where an employer may take action to assist those with specific protected characteristics. Such action must be a proportionate means to minimise disadvantages or meet needs.
Thus, positive action is permissible (although not required) under the Equality Act, whereas positive discrimination is not. In effect, this means that employers can use proportionate means to enable those disadvantaged by a protected characteristic. However, they cannot legally go beyond this; for example, by putting others at a disadvantage as a result.
Avoiding Positive Discrimination: Considerations For Employers
It is understandable, and even commendable, for employers to wish to expand diversity and inclusion in their workplaces. Changes to the laws on positive action mean that they are permitted to do this to an extent by providing training and encouragement to groups with a shared protected characteristic.
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However, there is a fine line between positive action and positive discrimination. Given the illegality of the latter, employers need to ensure that their actions do not fall foul of equality laws. For instance, employers must be careful not to breach section 159 of the Equality Act by treating those with a protected characteristic more favourably than others in a recruitment process.
Positive Action Should be Proportionate and Objective
It is advisable for employers to formally assess and document their findings on the need for positive action in specific circumstances. If this is deemed appropriate, employers should consider to which groups it applies and what proportionate action may be taken to remove potential barriers to participation.
With respect to recruitment and promotion, it will be important for employers to establish and comply with objective criteria at the outset. They should ensure that candidates meet these objective criteria before progressing to the next stage of the process. By so doing, it will help to avoid candidates progressing solely on the basis of any protected characteristic they may have.
Employers may find it helpful to consult the Equality and Human Rights Commission’s Employment Statutory Code of Practice. Chapter 12 relates to positive action and chapter 16 discusses how to avoid positive discrimination in recruitment, both of which can be extremely helpful for employers to ensure they remain compliant with equality laws.