The Metropolitan Police Service wants clarity on when it can favour ethnic minority job applicants over white candidates where they are equally qualified.
Positive discrimination and action
The Times suggests that Met Police commissioner Dame Cressida Dick has been lobbying the government for a change in law that would allow it to apply a form of positive discrimination to its recruitment practices, enabling it to increase the proportion of police officers from diverse backgrounds.
However, a Met Police spokesperson has since confirmed that it is not asking for changes to the law to allow it to apply positive discrimination in its recruitment practices, which is generally unlawful under the Equality Act 2010.
“What we are seeking is clarity that we can apply the existing ‘equal merit’ provision more routinely to police officer recruitment for a time-limited period, in order to expedite the entry of more applicants from Black, Asian and minority ethnic backgrounds and women, to meet our current recruitment aspirations more quickly. Given our role and purpose it is right that the Met does all it can to further increase the diversity of our workforce to better reflect London’s population,” the spokesperson said.
“We are asking the government to clarify that existing legislation that enables the ‘equal merit’ provision to be applied in limited recruitment circumstances, can also be applied more routinely to police officer recruitment for a time limited period.
Positive action and positive discrimination
- “Positive discrimination” means recruiting someone because of the protected characteristic. This is not included in the Equality Act and is unlawful.
- “Positive action” under section 159 of the Equality Act is lawful in the very limited circumstances where you can show that both applicants are of equal merit and you can then favour one over the other because of the protected characteristic – essentially a “tie-breaker”. However, it’s notoriously difficult to apply this, as the Furlong case showed in 2019.
- “Positive action” under section 158 – employers can take steps to compensate for disadvantages, for example recruitment drives to target particular groups or mentoring to help them with their applications. This is lawful and fairly uncontroversial.
“We are also asking the government to clarify that equal merit can be determined on the basis of the existing entry standards set by the College of Policing, again to enable the existing legislative provisions to be applied in volume police recruitment campaigns.”
The complex “equal merit” provisions allow employers to use a protected characteristic (such as race) as a “tie-breaker” between candidates of genuinely “equal merit” at the end of the recruitment process (ie at the decision stage).
Some senior figures in policing, have long called for the legal ability to positively discriminate in order to become more representative of the communities they serve. In 2019, the National Police Chiefs Council said this was needed in order to speed up the shift in the demographic of the police service.
The Met wants 40% of its new recruits from 2022 to be from an ethnic minority background, with 8% from black backgrounds specifically. More than 40% of London residents are from an ethnic minority background.
Neil Basu, the Met Police assistant commissioner and the UK’s head of counter-terrorism policing, has also pushed for this ability. Earlier this year he told a meeting of the National Policing Board, chaired by home secretary Priti Patel, that it “may be worth looking at the provisions of the Equality Act 2010 around positive discrimination if recruitment is to increase diversity at pace”.
Last year the Met launched a race action plan to improve trust in the service and to eradicate discrimination, racism and bias. This included building an outreach programme to attract more black candidates to policing jobs, increasing promotion opportunities for black officers, and developing a cultural awareness toolkit for Met officers and staff.
This article was updated on 2 June 2021 to clarify the Met’s position.