An employment tribunal has held that it was unlawful positive discrimination for a minority ethnic Sergeant to be given a Detective Inspector role without undertaking a competitive recruitment process in Turner-Robson and others v Chief Constable of Thames Valley Police.
The three claimants were white police officers who had expressed an interest in an impending vacancy for a Detective Inspector role. A minority ethnic Sergeant was moved into the role without the vacancy being advertised or undertaking a competitive recruitment process. The claimants brought direct race discrimination claims.
The respondent submitted that they had a Positive Action Progression Program (PAPP) to enable candidates at the rank of Sergeant belonging to a minority ethnic group and meeting certain other conditions to fast-track to the rank of Inspector and subsequently Chief Inspector. They argued that the appointment in this case was general positive action rather than positive action in recruitment and promotion.
The tribunal upheld the claimants' claims of direct race discrimination, finding that they were treated less favourably than the Sergeant by not being afforded the opportunity to apply for, be considered for or be appointed to the Detective Inspector role. There had been no balancing exercise to consider whether the decision to slot the Sergeant into the role in order to make the PAPP work was proportionate. There had also been a failure to carry out an equality impact assessment which should have been prepared before the decision to appoint was made. The tribunal also expressed astonishment at the lack of equality and diversity training received by the decision makers.
Take note: Although the Equality Act 2010 provides that employers can use positive action, either via general positive action provisions, or via provisions dealing with positive action in recruitment or promotion, they will have to ensure that they are doing so lawfully. If, as in this case, an employer decides to take general positive action it must be able to demonstrate that the action taken is proportionate.
