In this case, the Employment Tribunal (“ET”) provided guidance on the boundary between positive action (which is permitted) and positive discrimination (which is unlawful) under the Equality Act 2010 (“EqA”), finding that the promotion of an ethnic minority Sergeant without a competitive recruitment process was unlawful positive discrimination.
The Respondent ran a “Positive Action Progression Program”, which provided additional training and support for ethnic minority Sergeants, to assist them in progressing and fast tracking to Inspector role. The Respondent promoted one of the members of this programme (who was an ethnic minority Sergeant) into a vacant Inspector role, without advertising the role or running a competitive recruitment programme. Three white police officers (who had expressed an interest in promotion to Inspector rank) claimed that this amounted to direct discrimination on the grounds of their race.
The ET upheld their claim and decided that the promotion of the ethnic minority program member went further than “mere encouraging”, which would have been permitted as positive action under the EqA, and instead amounted to positive discrimination. Automatically slotting the Sergeant into the role without any real thought or consideration went beyond positive action and crossed the line into positive discrimination. The Claimants were therefore disadvantaged and treated less favourably because they were denied the opportunity to apply for the role and seek promotion, which could not be justified by the Respondent.
The ET also noted that the Respondent had failed to carry out an equality impact assessment before deciding to promote the Sergeant and no balancing exercise had been done to determine whether positive action was proportionate. Furthermore, there was a significant lack of equality and diversity training received by those who made the promotion decision, with one having not been trained for 21 years and the other having never received specific training on the law.
This case underlines both the importance of managing positive action programs carefully to avoid crossing the line into unlawful positive discrimination, and in ensuring managers and decision makers have suitable training in how to handle these types of decisions.