The Facts

Thames Valley Police operates a Positive Action Scheme named the Positive Action Progression Scheme (PAPP). Candidates at the substantive rank of Sergeant who belong to an ethnic minority group and met certain other conditions were eligible to apply to it. The PAPP tried to arrange for additional courses to be provided to police officers on the programme to enable them to achieve the rank of Inspector and subsequently Chief Inspector.

On 8 September 2022, Superintendent Baillie offered a lateral move to one of the candidates on the PAPP, Sergeant Sidhu. Miss Sidhu is described in the judgment as Asian. The role in question was a Detective Inspector position in the Force's priority crime team in Aylesbury. The role was a promotion to the rank of Temporary Inspector with a pay increase and added pension benefits. Miss Sidhu was moved into the role without any competitive process. The three white British Claimants had all expressed an interest in the post but were not able to apply for it as the post was not advertised. They were all well regarded and suitably qualified for the role.

On discovering Miss Sidhu had been appointed and after asking questions about this internally, the Claimants issued successful direct race discrimination claims in the employment tribunal. In deciding positive discrimination, and not positive action, had taken place it was important that:

• Superintendent Bailie's decision to move Miss Sidhu into a position without any competitive exercise went beyond mere encouragement of those from ethnic minority backgrounds and disadvantaged those who did not share Miss Sidhu's protected characteristic.
• It did not matter whether the role was a lateral move, transfer or promotion: it was recruitment, and the relevant provision was section 159(3) of the Equality Act 2010.
• It was not necessary to give Miss Sidhu the role as she stood a very good chance of being successful on merit, having just missed out on being appointed to a Detective Inspector role in a competitive process.
• Superintendent Baillie had been told by her superior to "make it happen". This was her focus rather than carrying out a balancing exercise to consider whether the action was a proportionate means of achieving a legitimate aim.
• Superintendent Baillie accepted in an email to the first Claimant that appointing someone into an acting up or promoting without going through a competitive process would be positive discrimination, which she had been warned about. She tried to justify the decision by saying lateral moves were part of a BAME Progression Program which did not exist at the time.
• the decision not to advertise went against the Force's own procedures that all internal posts should be advertised.
• an Equality Impact Assessment had not been carried out, which was described as a "cavalier approach to equal opportunities".
• Superintendent Baillie's last real equality and diversity training was 21 years ago.

What this means for employers

This case is another illustration that employers must not jump the gun in their efforts to increase the diversity of their employees. Lawful positive action steps must be a proportionate means of achieving a legitimate aim. Carefully assessing why the action is needed and then considering how the action taken is proportionate are necessary steps. Employers would also be wise to ensure those who are tasked with taking positive action steps have had relevant training.

Turner-Robson and others v The Chief Constable of Thames Valley Police