Image by Mohamed Hassan from Pixabay 1. INTRODUCTION Some British media outlets ran stories in April 2025 on how a regional Police Force (West Yorkshire) has put ‘applications from white Brits on hold’ and how the Chief Constable wants to discriminate against white candidates (Foreman, 2025; Bolton & Martin, 2025; Siddell, 2025). However, as may be […]
Image by Mohamed Hassan from Pixabay
1. INTRODUCTION
Some British media outlets ran stories in April 2025 on how a regional Police Force (West Yorkshire) has put ‘applications from white Brits on hold’ and how the Chief Constable wants to discriminate against white candidates (Foreman, 2025; Bolton & Martin, 2025; Siddell, 2025). However, as may be inferred from the inconsistent tense, only a very limited version of positive discrimination is permitted under British law – and the facts of the story are not what may be, perhaps intentionally, implied from the phrasing used.
It has long been clear that positive discrimination risks alienating some of the majority (e.g. McCrudden, 1996) – and is the apparent focus, for example, of the anti-DEI movement in the United States. The issuance of and responses to Executive Order 14173 of January 21, 2025 (Ending Illegal Discrimination and Restoring Merit-Based Opportunity) are the latest manifestation of this despite it already being unlawful to use race (or sex) directly as a criterion (e.g. Johnson, 2019; Joshi, 2019). It is also clear that, in many countries, in terms of proportionate representation of diverse groups across sectors, balance is yet to be attained (such as illustrated, to take just three examples, at Our World in Data re share of senior and middle management positions filled by women, UNDP (2021, p.8) re characteristics and the judiciary, and UNWomen re women in government, national parliaments and local government.) Proportionate representation, particularly in public services, can have important value. In terms of the judiciary, but which applies to a large extent to public services and to a lesser extent to private businesses too, McLaughlin CJ has outlined four overlapping reasons for this: public confidence (making the authority seem less alien); symbolism (which is perhaps more distinct from the first regarding the judiciary (who promote justice) than some other roles; and, the more broadly applicable, utilitarianism (not inhibiting some of the best people for the role from attaining it), and relatedly the benefits of having a wider perspective (in Hale (2005), p.285-286). A RAND Europe study similarly noted the benefits for the UK and US military in terms of national and international confidence and legitimacy (the latter aiding global engagement), enhanced decision-making (through e.g. mitigating in-group bias) and through gaining talent in the broader recruitment pool (Slapakova et al, 2002, fig. 0.1 and pp.11-38).
The same broad benefits can be seen to apply to policing – where the legitimacy/confidence aspect is of greater direct relevance given the nearer proximity of policing to the populace and the nature (in the UK) of policing being by consent – and where such legitimacy in the eyes of underrepresented groups has been strained for decades. For example, Lord Scarman in his report into the 1981 Brixton Riots wrote ‘A police force which fails to reflect the ethnic diversity of our society will never succeed in securing the full support of all its sections’ (para 4.1 cited in Quinlan, 2025, p.50). Nearly two decades later, Sir William McPherson’s inquiry found that the Metropolitan Police was institutionally racist (McPherson, 1999, para 6.45) and more recently Baroness Casey’s review found institutional homophobia, misogyny and racism in the Met (Casey, 2023) and Lady Agiolini (2024) recommended in her inquiry’s report that with ‘immediate effect, every police force should commit publicly to being an anti- sexist, anti-misogynistic, anti-racist organisation in order to address, understand and eradicate sexism, racism and misogyny, contributing to a wider positive culture to remove all forms of discrimination from the profession’ (recommendation 14) and that working conditions of female officers should be reviewed to encourage more women to join the police force and to progress in their careers (recommendation 16). Greater representation on its own would not necessarily prevent the appalling incidents that led to those inquiries, but it would help to change the culture within and the perception outside the organisations. How that representation is achieved, however, raises issues of legitimacy and legality.
In light of the stories about West Yorkshire Police, this post outlines the underlying law in Great Britain and sets the West Yorkshire situation in context through a consideration of the few past cases on positive discrimination.
2. THE STATUTE LAW
British discrimination law forbids direct or indirect discrimination against people with certain specified protected characteristics (as set out in Section 4 of the Equality Act 2010, and which includes race) with regard to certain activities. Direct discrimination is where someone is treated less favourably because of a protected characteristic (section 13 of the Act) – and if someone were to be treated more favourably, that by definition means someone is being treated less favourably, which would meet the basic definition of direct discrimination (unless s.13(3) applies which excepts some more favourable treatment of people with disabilities from the definition). Indirect discrimination (section 19), by contrast, is where people are treated the same, but the effect of that treatment (arising from a particular provision, criterion or practice) differs and people who share a protected characteristic are put at a significant disadvantage. The indirect discrimination definition is met if the discriminator cannot show the treatment to be a proportionate means of achieving a legitimate aim. While those are the general definitions of discrimination, the Equality Act does not, however, prohibit discrimination across all of life’s activities. The specific unlawful activities are set out in sections within successive Parts of the Act. Thus, Part V covers Work and, within it, section 39 holds, among other things, that:
An employer (A) must not discriminate against a person (B) —
(a) in the arrangements A makes for deciding to whom to offer employment;
(b) as to the terms on which A offers B employment;
(c) by not offering B employment.
This prohibition is not absolute and may be disapplied, for example, where there is an occupational requirement to have a particular characteristic (such as a woman attendant in a women’s changing room under the general Occupational Requirement provision in Schedule 9(1) of the Act), under specific provisions (such as the Women-only shortlists being allowed for electoral offices under Equality Act 2010, s.104 until at least 2030 (s.105(2))) or under the positive action in recruitment provisions within section 159 of the Equality Act 2010.
Section 159 allows for the disapplication of the prohibition of discrimination where an employer (or the like) reasonably thinks, when offering work, that participation in that work by persons who share a protected characteristic is disproportionately low (or thinks that they suffer a disadvantage because of the characteristic). However, that disapplication is strictly limited. Under s.159(2) it can only be used as a tie-breaker, as the favoured candidate must be as qualified for the recruitment or promotion as the candidate from the over-represented group. Furthermore, the employer must not have a general policy of treating persons who share the protected characteristic more favourably, in connection with recruitment or promotion, than persons who do not share it, and any such action favouring the candidate must be a proportionate means of achieving the aim of greater participation (or of overcoming disadvantage).
Section 159 of the Equality Act 2010 sits alongside section 158. Section 158 does not, in terms, disapply the prohibition of discrimination but declares that employers (and others) may take action to enable or encourage persons who share the disadvantaged protected characteristic to: overcome or minimise that disadvantage; or meet their needs if they have different needs; or enable or encourage persons who share the protected characteristic to participate in that activity if the employer reasonably believes that participation by people with that characteristic is disproportionately low (in each case so long as such action is a proportionate means of achieving such an aim). Accordingly, within the protected area of work, if the above criteria are met employers can, for example, focus recruitment advertising in media targeted at particular groups, or hold roadshows or run other familiarisation events for people from underrepresented groups (as a means of encouragement), but cannot then favour one group or another when it comes to the appointment stage (see, for further examples, Equality & Human Rights Commission, Equality Act 2010 Statutory Code of Practice Employment (2011:[12.24])).
3. PUTTING ‘APPLICATIONS FROM WHITE BRITS ON HOLD’?
What West Yorkshire Police was doing was, rather than just having an application window during which applications could be received, to more flexibly allow ‘people from under-represented groups who express an interest in joining the force to complete an application, which is then held on file until a recruitment window is opened.’ As they went on to note ‘Enabling people from under-represented groups to apply early does not give them an advantage in the application process, it simply provides [the force] with more opportunity to attract talent from this pool of applicants’ (West Yorkshire Police (2025, April 10) Statement in response to Telegraph article). Applications from ‘white Brits’ were therefore as much on hold as all applications had ever been – and it was certainly not the case, as perhaps implied, that there were non-white application rounds. The Chief Constable of West Yorkshire Police has, however, in the past called for the law to allow an element of positive discrimination in recruitment to the police so that the forces can, more swiftly, be more representative of their communities (Hyams, 2023).
4. UNLAWFUL POSITIVE ACTION
That is not to say that public services have not made wrong, what could be termed unlawful DEI, steps in the past regarding positive discrimination. In the case of Furlong v Cheshire Police (2019) ET 2405577/18, Cheshire Police ran a recruitment exercise for new police officers which attracted nearly 700 applicants. After the first stage of the process (including two questionnaires), Mr Furlong was of one of the 211 who progressed to the next stage (which was an assessment centre comprising a number of tests and exercises) and he then went on to interview where he performed ‘relatively strongly’ but was not the strongest (Furlong v Cheshire Police, [89]). 127 candidates passed the interview but there were not 127 vacancies – only 85. Cheshire Police Force then tried to rely on s.159 to prioritise applicants who had protected characteristics which were underrepresented in the Force. At an earlier stage, they had used targeted adverts and workshops and other supportive measures and that was unobjectionable. The attempt to use section 159 at the decision-making stage was, however, objectionable. Government guidance made clear that ‘appointments should always be made on merit’ and that artificially low thresholds should not be used:
If one candidate is superior to another[,] the position should be offered to that candidate. If the pass mark in an assessment centre is set at 70% and one candidate scores 71% and another scores 91%, treating those candidates as being of equal merit may be vulnerable to legal challenge (Government Equalities Office, 2011, p.9).
(The case refers to ‘page 1222 of the guidance’ (at [31] before the quote at [32]) but that should read the guidance at page 1222 of the case bundle. The guidance is currently at Government Equalities Office (2023, [10.7]).)
The Tribunal held that it ‘would be a fallacy to describe all of the individuals “as
equal or deemed equal”’(Furlong v Cheshire Police, [81]), not least given the fact that once the under-represented had been given priority for the 85 places, the Force ‘then reverted to a prioritisation of the quality of candidates by reverting to the Search Assessment scores and appointing in a hierarchy’, undermining the argument that the 127 were indeed equal (Furlong v Cheshire Police, [106]). The case then went on to consider proportionality of the action and the potential inter-operation of section 159 and section 158 [139], although as discussed at Hand (2020), this was unnecessary as the use of section 159 fell on the earlier stage of equality before the question of proportionality arose.
There have to date only been two reported cases – and at the lowest Tribunal level – on the use of section 159. The other also concerned a British Police Force. In Turner-Robson v Chief Constable of Thames Valley (2024) ET 3314825/2022, the Thames Valley Police Force were found liable for discrimination when three white police officers were not given the opportunity to apply for the role of Detective Inspector within a particular team. A Detective Sergeant had narrowly missed out on promotion at another location and was moved into the vacant post without any competitive exercise, purportedly as a part of the Force’s positive action policy. The Force asserted that as the number of officers at senior ranks who had minority ethnic backgrounds was disproportionately low, and the actions taken were a proportionate means of achieving the legitimate aim of enabling or encouraging persons from minority ethnic backgrounds to reach senior ranks within the force, the action was permissible as positive acts under s.158. Moreover, they tried to claim that s.159(3), which requires that the candidate be equally qualified, did not in this case apply as this was not a recruitment or promotion. This was not accepted by the tribunal. Section 158, with regard to employment, was concerned with ‘supportive measures rather than transferring, moving or promoting an individual into a vacant role without undertaking any competitive exercise’ (Turner-Robson v CC of Thames Valley, [43]) and the action by the Force did, in their view, amount to a recruitment to a new role on new terms (Turner-Robson v CC of Thames Valley, [55]-[59]). Accordingly, the tribunal held that moving the sergeant into the vacant role ‘without undertaking any competitive exercise did constitute positive discrimination in that it went beyond mere encouragement, disadvantaging those Officers who did not share [the] protected characteristic of race and who were denied the opportunity to apply for the role’ (Turner-Robson v CC of Thames Valley, [52]).
The Royal Air Force have also accepted that policies in the recent past have been unlawful. There is no case law here as the claims were settled out of court but there has been a non-statutory inquiry into the matter. In a bid to make the Air Force more representative, challenging targets were set which led to a plan to prioritise up to 221 ethnic minority or female candidates for access to phase 1 training (Ministry of Defence, 2023, [4.8]-[4.9]). This saw 70 BAME and 91 women candidates accepted onto certain courses, and in some cases led to the courses having no white male candidates. Space on phase 1 training, as the military lawyers discovered nearly two years later, ‘equated to a single “job”/recruitment’ and they then realised that section 159 was thus applicable (Ministry of Defence, 2023, fn 60). Subsequently a range of policies were considered to meet the targets including fast-tracking to the early stages, not running courses if a quota was not met, giving priority to underrepresented groups and slowing down overrepresented ones – but on consideration they were not pursued, following legal advice, as they were likely unlawful (Ministry of Defence, 2023, [5.56]-[5.59]). Nonetheless, the Group Captain who was head of recruitment was specifically directed by the Chief of Staff Personnel to appoint a number of people ‘plus any remaining Women and EM in those priority Professions that are ready, even if the EA Candidates are not “first past the post”’ (Ministry of Defence, 2023, [4.36]) as the Chief of Staff felt ‘there needed to be a bold move to make a difference’ (Ministry of Defence, 2023, [5.60e]). The Group Captain contested the second part of the direction and ultimately whistle-blew and resigned, leading to the inquiry and the recognition that the policies were unlawful.
5. CONCLUSION
It is important, particularly for public services, to seek to be broadly representative of those they serve, not least as in the UK public authorities are, through section 149 of the Equality Act 2010, under a duty when acting to have due regard to the need to advance equality of opportunity (including encouraging persons who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low). However, public authorities are under the same duty to have due regard to the need to eliminate discrimination, and to foster good relations between persons who share a relevant protected characteristic and persons who do not share it; unlawful positive discrimination undermines rather than underscores those.
Directly determinative quotas have long been unlawful in the United States and clearly fall outside section 159 in the Great Britain but quotas (or representation targets) may be part of aspirational efforts with a focus on culture and potential applicants (although that is under attack in the US) under section 158 as long as it stays within the limitations of the little litigated section 159. It would be unfortunate if, as mooted in Furlong v Cheshire Police at [139], section 159 was to be limited to being a successive measure, where positive measures under section 158 would have to have been given time to take effect, rather than a distinct measure. The two sections serve the same goal but come from different angles and have different scope (one, in employment-terms being pre-decision and not concerned with merit and the other being decisional and fundamentally merit based). Should that occur, and should the use of the two together fail to address imbalances, there may be need to revise the law but there is the very real danger of pushback. Rather than seeking bold actions and pushing the law to and beyond the limits to achieve an otherwise laudable and beneficial goal, it can serve equality law better to stick within the confines of the law when delivering such policy. The Chief Constable of West Yorkshire has incurred the wrath of parts of the media for calling for the law to change but notably in his actions, in contrast both to reported cases and some of the headlines about the policy, looks to recognise the limits of the current law.
About the author:
James Hand is an Associate Head (Research) and Associate Professor in Law at the University of Portsmouth. He publishes primarily on Equality Law and related topics.
(Suggested citation: J Hand, ‘The Limits of Positive Action under the Equality Act 2010,’ UK Labour Law Blog, 8 May 2025, available at https://uklabourlawblog.com/)
