Positive Discrimination: Promoting Ethnic Minority Employees Without Competitive Process is Unlawful

Positive discrimination was central in Mr Phillip Turner-Robson and Others vs The Chief Constable of Thames Valley Police. In this case, an employment tribunal ruled it unlawful to automatically promote a police sergeant from an ethnic minority without first completing a competitive process. 

While the police force aimed to address underrepresentation in senior ranks, the tribunal clarified that such efforts must not disadvantage individuals based on their protected characteristics.

Read on as we explore what happened and the tribunal’s judgment. We will examine what positive discrimination is and how it can be avoided. If you have any questions or believe you’ve experienced discrimination in the workplace, contact us now. Redmans Solicitors are employment law specialists with years of experience, meaning we can answer your questions and provide expert advice.

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Sergeant Promotion Sparks Debate Over Positive Discrimination

BAME Progression Program Promotes Sergeant to Detective Inspector

Mr Phillip Turner-Robson (“the First Claimant”) was one of three white British police officers who brought a claim against The Chief Constable of Thames Valley Police (“The Respondent”). Having commenced his employment on 21 July 2003, he had extensive policing experience. Miss Sidhu, who was a police sergeant before her promotion, was described by the respondent as Asian.

On 19 August 2022, an internal request was made for a detective inspector role to be advertised. That same day, the first claimant expressed his interest in the role, and four days later, he was informed that it would be advertised imminently.

However, by 8 September, the role had yet to be broadcast. Unbeknownst to the first claimant, then-Superintendent Baillie had already decided to move Police Sergeant Sidhu into the detective inspector role.

Still waiting to hear news, the first claimant questioned when the role would be advertised on 27 September. At this point, he learned that the position had already been filled as part of the Black Asian and Minority Ethnic (BAME) Progression Program.

Questions of Positive Discrimination are Raised

Disappointed he wasn’t given the chance to apply, the first claimant emailed the respondent on 30 September. He requested clarity about the decision and what constitutes a “positive action”. He also questioned whether the decision breached the Equality Act 2010 and the police force’s equal opportunities policy.

Soon after, Superintendent Baillie responded, but this provided more questions than answers. As such, on 5 October, the first claimant queried whether the respondent had followed their equality and diversity policies correctly. He also questioned whether the decision actually amounted to positive discrimination.

Superintendent Baillie provided a second response on 14 October, but this was unfortunately brief. The superintendent failed to answer the first claimant’s questions and simply attached a document containing details of the BAME Progression Program. Dissatisfied with the response, employment tribunal proceedings were eventually commenced.

Unfair Treatment at Work Revealed by Employment Tribunal

The employment tribunal established that the respondent hadn’t completed a competitive assessment process before filling the detective inspector role. Further, it was found that no equality impact assessment had taken place either.

The respondent argued their decision amounted to a positive action, believing it achieved the legitimate aim of encouraging those from minority backgrounds to reach senior ranks proportionately.

However, the tribunal disagreed. Since a competitive exercise hadn’t occurred, the tribunal felt the decision “​​went beyond mere encouragement, disadvantaging those officers who did not share Sergeant Sidhu’s protected characteristic of race”. Therefore, they found the decision represented positive discrimination and held the claims of direct race discrimination in the workplace succeeded.

What is Positive Discrimination?

The above case revolved around positive discrimination, but what is it? This type of employment discrimination occurs when preferential treatment is given to individuals based on their protected characteristics.

Often, it arises during a recruitment process. For instance, if an employer hires a female candidate solely to enhance diversity, overlooking a more qualified and suitable male candidate, this could constitute positive gender discrimination in the workplace.

Yet, such misconduct isn’t limited to hiring. Like with the case involving the police officers, it could also arise if an individual is unfairly promoted due to a particular protected characteristic they possess. In any event, positive discrimination is unlawful.

Positive Action: Making the Right Distinction

Although closely named, positive action is not the same as positive discrimination. Where the latter is unlawful, positive action provides employers with one of the few exceptions to ‘discriminate’ lawfully.

Essentially, positive action encompasses a range of steps employers can take to remove barriers for underrepresented groups and promote equality and diversity. The important distinction is that such steps don’t unfairly disadvantage those without a particular protected characteristic.

As an example, should two candidates (one male, one female) be equally qualified and suitable for a role, the employer may opt for the female candidate if they’re aware of underrepresentation of females within their organisation. This wouldn’t amount to positive gender discrimination in the workplace since the successful applicant wasn’t chosen simply because of her sex.

With this important distinction in mind, employers must be careful that their actions don’t constitute positive discrimination if positive action is their goal. If you believe that you’ve faced this type of employment discrimination, please reach out. Redmans Solicitors would happily assess your case and discuss your possible next steps.

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