The boundary between illegal positive discrimination and legal positive action can be difficult to judge – as Gloucestershire police have found.
A tribunal awarded £2,500 for injury to feelings to Matt Powell, who had applied to the force but then received a letter saying he had been ‘randomly deselected’ from the process.
The BBC reports that tribunal chairman Clive Toomer said: “We accept that Gloucestershire Police was, at the very least, disingenuous and at worst, misleading, during the early stages of the application.”
An investigation by the Equal Opportunities Commission (EOC) and the Commission for Racial Equality (CRE) found that the force had unlawfully discriminated on the grounds of race and sex.
Chairman of the Gloucestershire Police Federation, Ian Anderson, said: “I know there were a lot of angry white men in Gloucestershire who were upset about the way they were treated.
“I should imagine there is going to be a flood of people thinking about taking legal action.”
In a statement Gloucestershire Police said it had been responding to Home Office targets to ensure the force is representative of the community.
Of the 300 people who had passed the first stage of the recruitment process, 108 candidates had to be deselected.
The force chose to put through those who had achieved or surpassed the required standard from the under-represented areas – women and candidates from ethnic minorities, which meant the deselected candidates were the white men who had scored lowest in the selection tests.
The statement adds: “As was recognised by both the CRE and the EOC investigations, at the time the recruitment campaign was being run we were acting in good faith in attempting to address the recruitment profile of the constabulary.
“Our recruitment processes have now been adjusted following a review and are based on the latest legal advice available.”
Gloucestershire isn’t the first police force to fall foul of the complexities of positive discrimination and positive action. Earlier this year Avon and Somerset police admitted to dismissing nearly 200 applications by white men.
So, what is the difference? Positive discrimination is defined as treating someone more favourably because of their race, gender, sexual orientation or religious belief – from Sunday, age will also be added to the list.
It is clear that Gloucestershire police were in a position where positive action was justified – 2.8 per cent of its officers should be from ethnic minorities by 2009 and in September 2005, only 1.6 per cent of its officers were black or Asian.
The important thing to remember with positive action is that it can only encourage applications from under-represented groups – once the process is underway selection must be on suitability for the job.
Had the force confined itself to targeting its recruitment advertising on those publications read by women or ethnic minority groups, that would have been acceptable positive action.