28 February 2019
Discrimination is Discrimination
A landmark case.
By Lynda Goetz
In trying to ignore/blank out the total yawn-making, painful train crash that our Government and Parliamentarians seem to be making of Brexit, I noticed that discrimination seemed to be something of a theme (yet again) in recent news items. Firstly, surprisingly and almost shockingly, 25 year-old heterosexual white male, Matthew Furlong, won an employment tribunal case brought against the Cheshire Police Force. Matthew, a graduate in particle physics and cosmology, had applied to join the force in 2017, but had, unfortunately for him, chosen a time when Cheshire Police Force was addressing the fact that it was one of only four forces in the country without any black officers. In an attempt to remedy this state of affairs, it had set the bar so low that instead of allocating any sort of score to potential recruits, it had simply marked them as ‘pass’ or ‘fail’. On these grounds, it claimed it had 127 ‘equally suitable’ candidates. Matthew’s father, a detective inspector with the force, suspected something was wrong and lodged a complaint.
After four days of hearing evidence, Judge Claire Grundy ruled in favour of Mr Furlong, concluding that Cheshire Police had used positive action to discriminate against him on the grounds of sexual orientation, race and gender. The tribunal ruled that whilst ‘positive action’ can be used to boost diversity, it should only be applied to distinguish between candidates who are all equally qualified for a role.
For those not experts in HR and unfamiliar with the 2010 Equality Act (largely a consolidation of a number of previous acts), ‘positive action’ is generally lawful under the act, whereas ‘positive discrimination’ is not. Positive action, in simple terms, is where steps are taken to help or encourage certain groups of people with different needs, or who are disadvantaged in some way, access work or training. Positive discrimination, on the other hand, is the action of favouring someone with a protected characteristic rather than choosing the best person. Reiss Smith in The Independent this week argues that white men need to lose out ‘if we’re to reform our police force for the better’. His argument echoes that of Sara Thornton, Chair of the National Police Chief Council (NPCC) who, a few days prior to the Furlong case, said that police forces should be allowed to positively discriminate in order to make the police force more representative of the people they serve. Mr Smith concludes his rather ‘chippy’ article with the view that Mr Furlong has ‘benefited from privilege throughout his life. And while he’s perfectly entitled to call out discrimination where he sees it, there are occasions such as these when it is justified and – until real equality is delivered – necessary.’ Really?
Alan Cochrane in The Telegraph was arguing a couple of weeks ago that the SNP’s attempts to widen access to Scottish universities to those from poorer backgrounds amounted to blatant social engineering which was undermining Scotland’s best universities. He points out that not only are standards being lowered, but that the system being imposed on Scottish universities is going to discriminate against bright pupils from middle class homes. Instead of improving schooling in Scotland, Nicola Sturgeon’s party has taken the rather more dubious route of ordering all universities to lower entrance requirements for those from deprived areas or attending low-attaining schools; they are now required to publish two different sets of entry requirements. One headmaster commented “Policies of positive discrimination can lead to other forms of discrimination. Someone, somewhere ends up being disadvantaged.”
Shadow Education Secretary Angela Rayner recognised this problem in an interview she gave to The Spectator last autumn. “As we’ve tried to deal with some of the issues around race and women’s agendas, around tackling some of the discrimination that’s there, it has actually had a negative impact on the food chain for white, working [class] boys. They have not been able to adapt.” This week that issue, which has been noted by the Equalities and Human Rights Commission (EHRC) in the past, was raised yet again, with The Telegraph, The Mail and The Week all reporting on a call by EHRC to provide the same help for poor working-class boys as is currently available to travellers and children with special needs.
Recognising a problem is one thing. The issue of how to deal with matters of social injustice or discrimination remain rather more complex and can often prove to be blunt instruments. In a fascinating essay in the New York Times in December last year, Professor Gary Cutting of Minnesota argued why he was in favour of ‘affirmative action’ to increase the number of black students gaining admission to universities. At the outset of his essay, he pointed out that: “If you think it’s wrong to discriminate against minority applicants, shouldn’t you also think it’s wrong to discriminate against majority (white) applicants? If so, you shouldn’t support affirmative action, since it allows admitting minorities rather than whites precisely because of their race”.
This then is the nub of the problem. Is discrimination something which can only happen to minorities? This is the view taken by those in favour of positive (or affirmative) action or discrimination. However, the results of such action, whilst clearly helping minorities can, as we have seen, adversely affect what we might generally consider to be majorities; whether these are white middle-class heterosexual males; middle class applicants (quite possibly from private schools) to Scottish universities (or indeed to English universities) or white working-class schoolboys. Should we be discriminating against these in order to create a ‘better society’; arguing for example, as does Prof Cutting that, ‘that pervasive action against blacks far outweighs this single act of discrimination’? He is talking about America, which is of course very different from the UK, with a different history; nevertheless, I am not sure I agree that certain ‘factors should make it easier for whites to see their rejection as an act of social justice’.
Matthew Furlong was clearly the subject of discrimination. Even though he has now moved on and is using his degree elsewhere, this landmark case shows that majorities can be discriminated against and that in our efforts to create a fairer society we should not trample over the legitimate rights and expectations of those qualified to be considered either for education or employment. Would you really want your neurosurgeon or your airline pilot to be the guy (or girl or other gender of course) who only got there because of some quota or spurious target? Likewise shouldn’t we be ensuring that schools, both here and in Scotland are up to the task of educating students to get to university on merit, not postcode, ethnicity or disability?
