Mr Stephenson, Counsel For the v Respondent — 2024

All three claimants, who were white British police officers, brought race discrimination claims arising from the respondent's decision to place Sergeant Sidhu into the Detective Inspector Priority Crime Team vacancy at Aylesbury without advertising the post or running any competitive exercise. The tribunal found that they had expressed interest in the role, were told there would be no advert because the post had been filled as part of the BAME progression process, and were thereby denied the opportunity to apply and be considered for the vacancy.

The tribunal accepted that the respondent relied on positive action, but held that the decision went beyond the lawful scope of ss.158 and 159 Equality Act 2010. It found that the appointment of Sidhu into the vacancy was a recruitment or promotion decision within s.159, and that the respondent's approach was not a proportionate means of achieving a legitimate aim. In reaching that conclusion, the tribunal noted the absence of a competitive process, the failure to carry out an Equality Impact Assessment, and the evidence that internal posts should ordinarily have been advertised.

A further part of the reasoning was that Sidhu had not yet taken up her promoted rank when the decision was made on 8 September 2022, so the tribunal considered that she was slotted into the vacancy before her promotion had taken effect. The tribunal also referred to internal emails showing concern that putting someone into a role without competition might be legally ambiguous, and to the respondent's own acknowledgement that the decision had been influenced by race. On that basis, the tribunal found direct race discrimination proved. The judgment is a liability decision and does not record any monetary award or other remedy.