A claim for direct discrimination against a police force by a white heterosexual male succeeded. In giving preference to candidates with particular protected characteristics, the employer would have to meet the conditions of s.159 EqA, but had failed to do so.
Giving preferential treatment to women – or for example to those of a particular ethnic group – may be unlawful even though the aim is to address disadvantage. However, ss.158 and 159 EqA permit positive action subject to certain conditions.
S.159 applies to promotion and recruitment. Giving preference to someone with a particular protected characteristic may be lawful to address disadvantage or low participation, but there are narrow conditions. In a recent employment tribunal case, which claims to be the first decided in England and Wales on s.159, the tribunal held that the employer had failed to comply with these conditions.
For example s.159 is supposed to apply only where candidates are ‘as qualified as’ each other – in other words where the protected condition is a ‘tie breaker’. The tribunal in this case rejected the contention that 127 job applicants were of ‘equal merit’ for the role of police constable.
The case is Furlong v Chief Constable of Cheshire Police, www.gov.uk/employment-tribunal-decisions/mr-m-furlong-v-the-chief-constable-of-cheshire-police-2405577-2018 . It is not an appeal case and so is not binding authority.