The recent case of Turner-Robson and others v The Chief Constable of Thames Valley Police demonstrates that employers must always act proportionately when seeking to promote the interests of under-represented groups of employees.

Phillip Turner-Robson, Inspector Graham Horton, and Custody Inspector Kirsteen Bishop, who worked for Thames Valley Police, were white and British. They had all worked for the employer for a minimum of 19 years. Sergeant Sidhu, another employee, was minority ethnic. When a vacancy for a detective inspector role arose in August 2022, plans were initially made to advertise the job, but instead it was given to Sergeant Sidhu without advertisement or assessment. Sergeant Sidhu bypassed the role of inspector and went directly to detective inspector. The employer claimed that this was justified under its policy to fast-track minority ethnic officers up the career ladder, but the three claimants felt that they had been directly discriminated against on the grounds of their race.

The Employment Tribunal agreed with the claimants, stating that the employer had gone too far, and that its actions in this case were not a proportionate means of achieving a legitimate aim. Its attempt at positive action had become positive discrimination. It was possible that Sergeant Sidhu may have achieved the detective inspector position on merit, had a competitive process should been undertaken, but the claimants should also have been given the opportunity to apply.

It is important to note the difference between positive discrimination and positive action.

The Equality Act 2010 is not designed to allow positive discrimination (as this is still a form of discrimination, even if it is well-intentioned). So, an employer must not employ someone from an under-represented group without considering that specific person’s ability to do the job. Nor should they set quotas to employ a certain number of people from under-represented groups.

However, employers can take positive action, which is an exception to the prohibition on discrimination in employment. Employers may (but are not obliged to) encourage under-represented groups to apply. Employers may wish to add to job advertisements a phrase such as: ‘We welcome applications from all candidates who feel that they would be suitable for the job. We are passionate about creating a diverse workforce and positively encourage applications from members of communities who are currently under-represented in our business.’ They can also treat job applicants from under-represented groups more favourably than other job applicants, as long as the applicant from the under-represented group is at least as suitable as the other job applicants. If another applicant is more suitable, then they should be offered the job instead of the applicant from the under-represented group. Suitability can be subjective, so employers are advised to keep notes on why they chose one candidate over another.

There are some situations when there is a genuine occupational requirement for a certain type of person to do a job, but these are rare. Some examples are:

• A person of a particular age, race or sex may be required for an acting job.
• A public changing room or toilet may require an attendant or cleaner of the same sex as those using the facilities, on the grounds of privacy or public decency.
• A counsellor helping women who have experienced violence by men may need to be female in order to avoid causing the victims any further upset.

However, in this case, by giving Sargeant Sidhu the role without any real analysis or thought of her suitability, the Employer had failed to weigh up whether its actions were proportionate. It had acted in a discriminatory manner, which couldn’t be justified.

If you have any questions, please contact us by emailing enquiries@perspectivehr.co.uk or by phoning 01392 247436.