Key takeaways

• The Tribunal considered that the case fell within section 159 of the Equality Act 2010 which deals with positive action in recruitment and promotion. Appointment to a vacant role that had been identified for recruitment fell within those provisions, regardless of whether this involved a lateral move, transfer or promotion.
• Under those recruitment and promotion provisions, an employer can treat an individual with a particular protected characteristic more favourably in connection with recruitment or promotion provided that:
  • the employer reasonably believes that those who share that characteristic suffer a particular disadvantage or are disproportionately under-represented;
  • the action is a proportionate means of minimising that disadvantage or improving participation;
  • the employer does not have a general policy of treating those with particular protected characteristics more favourably; and
  • the individual with the particular protected characteristic is "as qualified" as the comparator to be recruited or promoted.
• On the facts of this case, the respondent's slotting of the sergeant into the vacancy was not a proportionate means of achieving a legitimate aim. The evidence showed that the sergeant had a very good chance of being successful in applying for the post on her own merit so it was unnecessary to slot her in. The respondent was so focussed on making the scheme work that it failed to consider whether its actions were proportionate and it had also failed to carry out an equality impact assessment. The respondent's actions went beyond mere encouragement and constituted positive discrimination.
• The decision is a good reminder of the very strict limits on lawful positive action and the complexity of this area of law. Employers continue to encounter difficulties in deploying positive action in recruitment and promotion provisions of the Equality Act 2010. For further guidance on positive action, please click here for our previous alerts on this topic.
• The Tribunal was also surprised about the lack of equality and diversity training, finding that the last real training was received 21 years ago. The decision is therefore also a reminder to employers to review their equality and diversity training programmes. This will become even more important when the new duty to prevent sexual harassment in the workplace comes into force in October. For more information on the new duty, please click here. We will also be releasing a vlog and a more detailed alert on this new duty shortly.

Turner-Robson and others v. The Chief Constable of Thames Valley Police, ET

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