Encouraging workplace diversity
Matthew Furlong applied to join the Cheshire police in 2017 and was rejected as a recruit because he was a white, heterosexual male.
Furlong lodged a complaint. The Employment Tribunal in Britain, sitting in Liverpool, ruled that Furlong was directly discriminated against on the grounds of sexual orientation, race, and sex.
It transpired that in 2015 a number of police forces had been criticised, including the Cheshire police, for not having any black officers. The police took steps to improve opportunities for those of different ethnicity, gender, sexual orientation, and disability.
The judge noted the case had to be considered within the national context of a lack of representation of individual communities within the police force, and in particular within the Cheshire police.
Indeed, extensive evidence was received by the tribunal indicating how unrepresentative the police force was.
At the time, Cheshire and several other forces employed no black or minority ethnic police officers. Accordingly, the chief constable of Cheshire police – the employer – put in place a strategy to diversify its force.
Focus was to be on getting more black and minority ethnic officers, those of non-male gender, different sexual orientation, and those with disabilities.
The tribunal noted that of the 34 white male, non-disabled candidates, Furlong had performed very well at the interview.
We are told that he had studied physics and cosmology at Lancaster University and was commended at the interview for being well prepared and told he could not have done any more. He was in the top section of those who were interviewed.
The tribunal ruled that while positive action can be used to boost diversity, it should only be applied to distinguish between candidates who were equally well qualified for a role.
The tribunal rejected the contention that the 127 successful or ‘‘pass’’ candidates were of ‘‘equal merit’’ or could be deemed to be of equal merit.
The three tribunal members unanimously decided that Furlong was discriminated against.
In New Zealand, both the Human Rights Act and the Bill of Rights Act recognise that to overcome discrimination, positive action may be needed to enable particular groups to achieve equal outcomes with other groups in society.
Such measures are called special measures, or affirmative action. They are not discriminatory if they are done in good faith to assist people in certain groups to achieve equality and if the positive actions are executed correctly.
The Human Rights Commission says that measures must be tailored to reduce the actual disadvantage of the group it is aimed at. The impact of such measures on those to whom it does not apply should also be considered.
In a case involving Nelson Polytechnic in the late 1990s, the same sort of issues were considered. The polytech had negotiated government funding to reserve places on a deep-sea fishing course for Ma¯ ori or Pacific island people.
An employee of the fishing company Amaltal, applied for a place and was rejected. He was neither Ma¯ ori nor of Pacific Island descent.
The Complaints Review Tribunal held that the polytech failed to provide evidence to demonstrate that one or both of the racial groups within the target group needed assistance or advancement to achieve an equal place with other members of the community with similar aspirations.
Universities reserve places for people of Ma¯ ori or Pacific Island ethnicity. For example, in medical schools and law schools.
This – as in the case of Furlong – can lead to resentment on the part of those who miss out because of this positive discrimination.
In New Zealand, as in Britain, there is a desire for minority groups to be encouraged to play more of a leadership role in our society. This has to be seen as positive.
Sure, on occasions the white heterosexual, non-disabled male may feel that they were unfairly disadvantaged. However, those in minority groups may well have that experience on a regular basis.
Surely, we need to encourage a society where all elements are involved in leadership positions and positive discrimination, provided it is applied in accordance with the rules.
Peter Cullen is a partner at Cullen, The Employment Law Firm. He can be contacted at peter@cullenlaw.co.nz.