White heterosexual male and not disabled has been unlawfully discriminated

In a first case of its kind, Liverpool Employment Tribunal rules that Mr Matthew Furlong was unlawfully discriminated and denied his dream job simply because he was a white heterosexual male and did not have a disability.

Mr Furlong applied for a police constable job with Cheshire Police. He made it through to the interview stage and was very impressive at his interview with positive feedback from the panel. He still did not get the job.

It was revealed that the police force, having been previously criticised for lack of diversity, implemented a ‘positive discrimination policy’ giving preference to BME, LGBT, female and disabled candidates, that is those candidates who the force considered to have a protected characteristic. In this process, it was of course overlooked that the characteristics of being a heterosexual white male are equally protected.

The Equality Act 2010 does not protect a male over female, or the other way round, or a black job candidate over white, and so on. The Act says that, with a few exceptions, an individual cannot be treated differently and suffer a detriment on the basis of a protected characteristic, of which there are nine: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation. It is wrong to discriminate a gay man over a straight man, for example, but it is equally wrong to discriminate a straight man over gay.

The constabulary sought to rely on a specific exception to this general prohibition, which permits giving preference in recruitment and promotion to candidates with a protected characteristic who suffer a disadvantage or are under-represented in that particular activity and who are as qualified. Say, a company is recruiting a middle manager and has a man and a woman who are equally qualified. If the gender balance in the middle management of this company is skewed towards men, the company would be allowed to give the job to the woman for the mere fact she is a woman to address the gender inequality.

This was not the case with Mr Furlong. He was well qualified for the job and had impressive qualifications. The constabulary selected 127 candidates after the interview stage, and then gave priority to the underrepresented candidates: candidates from LGBT, with disabilities, candidates whose English was their second language, to name a few.
The Tribunal was not at all convinced that all 127 candidates were equally qualified. Had the recruitment process been fair and had it taken into account the specific qualification of the candidates, Mr Furlong would have been at the top and would have been given the job.

The Tribunal’s conclusion that Mr furlong suffered direct discrimination is hardly surprising. The case now awaits another hearing to determine the amount of compensation due, which can be expected to be substantial.

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Authors: Kiril Moskovchuk

Published: 22 Mar 2019

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