Co-Authored by Hannah Bignell
Next week marks the deadline for employers with 250 employees or more to publish their second set of gender pay gap data.
For some employers, their gender pay gap will have narrowed. But for many, their published figures are likely to show little to no progress on their previous year's figures. That is perhaps unsurprising. The Government Equalities Offices recognises that "closing the gender pay gap is not a quick fix, and employers may take time to see their gap close as they implement long term action plans". But could employers be doing more to try to close their gender pay gap?
One way that employers could seek to tackle their gender pay gap would be to consider the introduction of positive action measures.
Positive action is an important provision in the Equality Act 2010, which allows employers to treat an individual who has one or more protected characteristics more favourably than an individual who does not share them, as long as the employer has justification for doing so.
The Act includes general provisions which allow employers to target measures such as dedicated training to groups, such as women, who are unrepresented or disadvantaged in the workplace, to meet their particular needs. It also includes a specific provision in respect of recruitment and promotion, which allows an employer to recruit or promote a candidate from an underrepresented group over another candidate who is of equal merit (the so called "tie-breaker" provision).
But employers must be careful how they implement such measures to avoid claims of unlawful positive discrimination.
The Employment Tribunal recently considered the application of the "tie-breaker" provision in the case of Mr M Furlong v Chief Constable of Cheshire Police. It is important to note that this judgment is not binding, however, it provides useful guidance for employers to consider when implementing positive action recruitment measures.
In this case, the Claimant, Mr Furlong (a heterosexual, able-bodied, white male) brought a claim for direct discrimination on the grounds of sexual orientation, race and sex after he was unsuccessful in his application for a position as a police constable with Cheshire Police. Mr Furlong successfully completed the three stages of the recruitment process: application, assessment centre and interview, but was ultimately unsuccessful.
Cheshire Police sought to rely on the "tie breaker" provision and underlined that its focus was to increase diversity within the workplace and as a result they hired individuals who were equally suitable from underrepresented groups.
The Tribunal held that the Cheshire Police had failed to satisfy the legal test for positive action. Mr Furlong was therefore successful in his claims for direct discrimination.
One of the key reasons for the Tribunal's decision was that they did not agree with Cheshire Police that applicants who passed the final interview stage were equally suitable. The final stage of the recruitment process was assessed on a pass/fail mechanism. 127 applicants passed, all of which Cheshire Police treated as equally suitable. The Tribunal found that 127 applicants could not all have equal merit at final stage, because adequate assessment cannot be on a pass/fail basis. This was reinforced by the panel's interview notes, which showed a wide disparity between the quality of the applicants. The Tribunal also noted that the Claimant was one of the strongest applicants at the final stage.
The Tribunal also found that Cheshire Police had applied a policy of treating applicants with one or more protected characteristics more favourably throughout the recruitment process. Cheshire Police provided statistics on underrepresentation in the police force which were criticised and Cheshire Police could not evidence that there was a barrier to applicants with protected characteristics. The Tribunal held that the recruitment process had radically changed and this was not necessary based on the statistics provided by Cheshire Police. As a result it was decided that the recruitment process was not a proportionate means of achieving the legitimate aim of increasing diversity within Cheshire Police.
What does this mean for Employers?
The judgment highlights that it is important for employers to take a careful and considered approach when applying positive action measures.
It also makes clear that, while the 'tie-breaker' provision may be applied in genuine tie-breaker situations where there are a few applicants that are equally suitable for the role, it should not be applied in cases where there is a large pool of applicants being treated as having equal merit.
While Cheshire Police may have fallen foul of the law in this case due to a lack of understanding, many employers have successfully adopted positive action measures to tackle disadvantage and underrepresentation. Used appropriately, they can provide an effective means to bring about change.
Please do contact us if you like to know more about position action and how you might use the position action provisions in the Equality Act to tackle your gender pay gap.