Mr M Furlong v The Chief Constable of Cheshire Police [2019]

In brief

Cheshire Constabulary was held to have unlawfully discriminated against a heterosexual white male candidate by applying positive action under s.159 EA 2010 outside its statutory preconditions. The force had treated all candidates who passed the threshold as 'equally qualified' and then preferred candidates from under-represented groups. The tribunal held that the s.159 tie-breaker applies only where candidates are genuinely as qualified as each other, and that treating a pass-mark threshold as equivalence goes beyond the permission.

Key provisions

• s.159-preconditions — s.159 tie-breaker applies only to candidates as qualified as each other: The statutory precondition for lawful application of the s.159 tie-breaker is that the candidates are genuinely 'as qualified as each other'. A pass-mark threshold or ranking band does not satisfy that precondition. Employers that apply positive-action preference to candidates who are not actually equally qualified act outside s.159 and commit unlawful direct discrimination.

When relevant

Respondent invokes s.159 to justify a preferential selection rule, The process in fact involves ranking, scoring or a pass-mark rather than a genuine dead heat, The case concerns recruitment, promotion or candidate selection