Positive discrimination

Why it’s problematic, with real case law examples

What is positive discrimination?

Positive discrimination = unlawful under the Equality Act 2010. It means favouring someone because they have a protected characteristic.

Often seen in:

Recruitment
Promotions
Training or development access

Can create:

Resentment and division
Skills gaps
Emotional fallout or tokenism

These characteristics include:

Age
Disability
Gender reassignment
Marriage and civil partnership
Pregnancy and maternity
Race
Religion or belief
Sex
Sexual orientation

Case Study – Mr Furlong v Cheshire Police (2018)

A cautionary tale on positive discrimination.

Cheshire Police’s defence

Argued they applied positive action.
Aim: to improve workforce diversity.
Claimed 127 candidates were of equal merit.
Used the Equality Act 2010 as justification.

The claim

Mr Furlong brought a case of direct discrimination.
Based on:
- Sex
- Race
- Sexual orientation

Background

Mr Furlong: white, heterosexual, non-disabled male.
Applied for police constable role.
Performed well in all assessments.
Rejected at final stage.
Suspected discrimination in favour of candidates with protected characteristics.

Case Study – Mr Furlong v Cheshire Police (2018)

Key takeaway

Positive action must meet strict legal tests.
Must be targeted, proportionate, and based on clear evidence.
Broad-brush approaches can easily cross the line into illegality.

Outcome

Mr Furlong’s claim succeeded.
Tribunal found direct discrimination had occurred.

Tribunal findings

Actions amounted to positive discrimination, not lawful positive action.
No clear evidence of disadvantage or need to justify the approach.
Blanket policy = not proportionate.
Tribunal did not accept that 127 candidates were of equal merit.
Failed to consider broader impact of their measures.