Find the transcript for the video included in the Fire Diversity and Inclusion Champions Network session.
Jagtar Singh, National Advisor for the Asian Fire Service Association: My name is Jagtar Singh, and I'm one of the founding members of the Asian Fire Service Association (AFSA). Fiona will probably know that the Asian Fire Service Association was actually founded as an initial group in London Fire Brigade, supported and sponsored for about five years there, until it was then launched nationally. Since then, we now have nearly every fire brigade as corporate members; just about five or six that are not. The kind of things we do is we [hold] an annual conference in spring and an annual conference in November. Happy to share the product of those with you. We've done a report called Smoke and Mirrors. Those of you who have been in the fire service for a while will know that following the death of Stephen Lawrence, the fire and rescue service were also accused of being institutionally racist. A report was done at the time by the Home Office called the thematic review. Thematic reviews (inaudible 01.15) couple of further years, and from those thematic reviews there was supposed to be further reviews, but the government didn't follow through on those actions, and that's governments of both colours. The select committee also asked the DCLG at the time to carry a review and, again, they were unable to due to capacity. So, the Asian Fire Service Association, with the partnership with the Fire Service Research Trust, carried out a review.
It's called Smoke and Mirrors. I'd be happy to share that with Fiona and the LGA. Out of the Smoke and Mirrors has come a very, very clear action plan, clear products, and one of those products is, today, it's about positive action. Nicola's [Green] company speaks at a corporate member of AFSA, and they've helped us to produce a very, very good guidance document on positive action, and we will share that with you following this conversation. So, as well as the slides, I highly recommend you read Smoke and Mirrors, and you ask your officers what they're doing around Smoke and Mirrors. If you want some further background, I ask you to consider what the history of equality and diversity is in your service, what the action plans were from the thematic reviews, what actually changed what happened. So, now, without further ado, because positive action is a really important topic, very, very misunderstood, and the current climate of the George Floyd death and the focus on Black Lives Matter, the disproportionate deaths of BAME in COVID-19. Positive action is just another methodology to ensure that you reflect the community, so you can provide the best possible services and you reduce the inequalities that that creates. As I say, Nicola Green is our Adviser. I'm going to invite her to come in as I change the slides.
Nicola Green, Capsticks Law Firm: Thank you very much for inviting us here today, as Jag has said, I've worked with AFSA for a number of years now on issues relating to discrimination, and most recently on creating some guidance notes on positive action. So, slide three is looking at the State of Fire report and some of the comments that came out of the people findings from the HMI [Her Majesty’s Inspectorate of Constabulary and Fire & Rescue Services] reports. I found those really interesting I have to say, as an employment lawyer looking at them, and having spoken about positive action, you will see I've taken this section out of it. In some services, we found either indifference to diversity and positive action, or on a small number of occasions, outright hostility. If services want to foster a welcoming and inclusive culture for a new diverse workforce, they must do more to educate their people and challenge and dispel myths about positive action. And that's what I'm going to talk today with you about. I've also been speaking to a number of fire and rescue services about that, because I think there is hostility within the workforce, and I think that comes from a misunderstanding about what positive action is. People tend to fear it, thinking that if we use positive action, people who are under-qualified will be employed, but that’s actually not the case at all. If we could go to the next slide please, Jess.
So, I wanted to start with a quick quiz, to see what you understand is the difference between positive action and positive discrimination, there is a very fine line between the two and it's very easy to tip into positive discrimination, even though you think you're using positive action. I wondered if we could use the chat box function for that. So, when I read out each bullet point, if you could either put in PA if you think it's positive action or PD if you think it's positive discrimination. This might work, it might not work, we'll give it a try.
The first bullet point: 'Networking groups for those with protected characteristics only,' is that positive action or positive discrimination do you think? Oh look, someone's done it, excellent. PD, positive discrimination someone's saying. PA, PA, I'm reading these out Jag because you can't see them. I've got an overwhelming majority saying PA. Alright, I'll stop you there, I agree with that, I think that's positive action. That is permitted under the Equality Act, which is the legislation which sets out positive action. Okay, I'm going to move onto the second one, 'Selecting a candidate because they have a protected characteristic.' Is that positive action, PA, or positive discrimination? PD, PD, PD, everyone is saying PD. Positive discrimination. Actually, that depends. It's a (mw 05.56) lawyer's answer, but it does. And I'll go on and explain that. Section 159. Well done Micky Hadson, Section 159 of the Equality Act states that you can select someone with a protected characteristic, but only in certain circumstances.
M: (inaudible 06.11) by the way, so don't be concerned, because this is the biggest area of clarification that you will get.
Nicola Green: And Section 159 is the most difficult section to understand, and there is a lot of confusion about it, and I will go on and deal with it. So, the third one, 'Setting a policy that 50% of recruits will be women'. Is that positive action or positive discrimination?
F: Positive action.
Nicola Green: I've got a positive action, I've got some positive discriminations. I've got a bit of a mixture. Sorry, Angela, you were raising your hand. Do you want to speak?
F: Positive action.
Nicola Green: You think positive action? This is very interesting. So, setting a policy is having a quota, essentially, and quotas are unlawful under Section 159 and I will go on and discuss that. What you can have is a target, which is an aspirational goal, and that is permissible. So, you have to be very careful about what you're setting.
M: If we said that question slightly differently, and we said set a policy that 50% of recruits must be women, that would give you more of an indication of what we were looking for as an answer, but we are going to cover quotas (mw 07.27) during the course of this, and it's very important. That's another lesson you take away, the difference between a quota and a target.
F: And it's also the use of language as well. Must or that can make a difference.
Nicola Green: Yes, I completely agree. The next one, 'Offering interview training to those with protected characteristics only.' Positive action or positive discrimination?
F: I would think that would be discriminatory.
Nicola Green: I'm going to wait and see what anyone else comes back with. Lots of positive actions in there, lots of people saying positive action. So, I think that's another it depends. Well, I know it's another it depends, because it depends on when you're offering the training. If you offer the training before the recruitment process has started, it falls under Section 158, and I will talk about 158 and that's general positive action. If you give that training and offer that training as part of the recruitment process, you're falling into Section 159 of the Equality Act, and then it looks like you're having a policy of treating those with a protected characteristic more favourably, and that is unlawful. So, again, it's another it depends.
Jagtar Singh: I'll just come in here as well. This is a really contentious area. The reason why it's contentious is if you don't offer interview training for those from protected characteristics, or those most disadvantaged, those who have no links with the Fire and Rescue Service, they will continue to fail at interview. Because we know, through research, and I’ll find my report, (inaudible 09.09) 70-60% of people who join the Fire Service know somebody in the Fire Service. And surprise, surprise, they know the questions, they know the answers, they know what you're looking for, and therefore it's important that we bring everybody to a level playing field of preparation. And Nicola is right, the law says what you can do up to a certain point, but we know people go beyond that when their friends and neighbours play sports with applicants, and that really does translate through our panel, and this is where panel training is so important that you can see behind the answers. Is this person genuinely giving you an answer, or is it a rehearsed answer that a colleague or a friend in the service has told them? (TC 00:10:00)
Nicole Green: Thanks Jag. Thank you. We're going to do, I'm not going to do the last bullet point because I think you'll know the answer to that, but the second to last one, the penultimate one, 'Lowering pass marks for those with protected characteristics.' Is that positive action or positive discrimination? Everyone's saying positive discrimination. And I agree with that, that's right.
Jagtar Singh: This is the one that causes me the greatest of concern, and I'm glad we've got (mw 10.29) rules here, and we've got LGA members that can follow the challenge through. I, and AFSA, have got serious concerns that the pass marks that were preset in the days that I worked at DCLG, that all brigades follow the same pass mark have now gone, and individual brigades set their own marks on various mandatory tests that exist, or use common tests but have a different pass mark. Now that's not lowering pass marks, but it is having a differential from one brigade to another, and could you pass a legal challenge if, let's say, Blankshire, say your test pass at one test is 50%, and the next door brigade say it's 90%. How would you justify? Because any pass mark to have a job or for the role must be role related, relevant and justifiable. This is a real, thorny area that I think the fire service has not had a legal challenge on, but a potential challenge. Nicola, you want to come in on that point?
Nicola Green: The lowering of the pass marks, it's difficult when you have had a national standard previously, haven't you, and then you're moving to individual pass marks. And there is the ability to look, I think, in more detail and work out what works for you as an organisation, but I think you need to be very careful about artificially lowering thresholds and pass marks, and I will talk about a case that has come to the employment tribunal, or the only case we have on positive action, actually, in the employment tribunal. And there are definitely grounds on which it can be challenged, I think, if you're doing it artificially and there isn't a legitimate basis behind your decision to lower marks.
Jagtar Singh: Thank you Nicola.
Nicola Green: Okay, shall we go to the next slide, Jag, please. So, looking very quickly at positive action, the difference between that and positive discrimination, as I said, there's some really fine line which exists between the two. Positive discrimination is treating those with a protected characteristic more favourably than you treat those without a characteristic, and that is unlawful, unless it fits within certain exceptions that are set out in the Equality Act. There are two that you've probably come across before, that's occupation requirements, that's when the job requires that someone has a protected characteristic to carry out the role. And the other is reasonable adjustments, and the positive discrimination in the case of disability. Section 13 of the Equality Act states that if someone is not disabled and an employer treats someone else with a disability more favourably, they can't claim direct discrimination, essentially. And this last category is positive action. So, if you are able to fall within the provision of positive action, it will not be positive discrimination. But you need to be ever so careful because positive action, whilst it's been around, actually since pre the Equality Act, employers have been really reluctant to use it because of this fine line. we see from the employment tribunal case that came through, whilst the employer completely thought they were working on the right basis and they were doing the right thing to try and improve diversity in the right workforce, they tipped just the wrong side of it and fell into positive discrimination. Which [then] has led to a direct discrimination finding on the basis of sex, race, and disability against them. So, you do need to tread carefully with positive action.
Jagtar Singh: Hold on a second here. So, Nicola will give you a couple of examples, because I think examples and stories are what you really want. So, occupational requirements, what does that mean? So, that means that if you run a women's refuge and you want to employ a manager there, you could stipulate for genuine reasons, occupational reasons, that only a woman will be employed as a management role inside that, to offer services to women who have had domestic violence. In the fire service, the only example I have seen that's been used was a fire service set a genuine occupational requirement when they had vacancies on a fire station, rather than fire brigade, [was that] they wanted to recruit to that station where they had a high Asian population, and they put in an essential requirement as speaking the languages of that particular fire station, which was Punjabi and Urdu. So, it's never been used again. My recommendation under that one would be more brigades should be considering desirable criteria that says, in the Fire and Rescue Service it's desirable that you speak more than one language, it's desirable that you understand certain communities. That would help you to address that area. The reasonable adjustments - I did not think, because I joined the fire service in 1977, and we did not make reasonable adjustments in those days – if you were wearing glasses, you were pensioned out immediately. Later on, we found ways of making reasonable adjustments and fitting face masks around glasses. Hereford and Worcester went further than that when a young fire fighter lost the lower part of his leg in a motorbike accident, they made reasonable adjustments to ensure that he could carry on becoming a fire fighter. And reasonable adjustments is a tool, it may be crude at times, but one that I would encourage brigades to consider more and more to ensure that we also reflect the community, with people with certain disabilities that are certainly able to do the job, but we seem to rule out, just because it's too tough to do.
Nicole Green: I agree. Thanks, Jag. Could we go forward another slide please, Jess. So, looking at the basis, this is a summary, really, of Section 158 and Section 159, and I'll deal with each one in detail, particularly focusing on 159. I think most employers are comfortable with Section 158, and certainly when I've spoken to Fire and Rescue services, lots are using it already to try and increase the diversity of candidates, called positive attraction in some Fire and Rescue Services. So, this is really looking at offering specific training, advertising, aimed at those with a protected characteristic, and that is permissible, that falls under Section 158, provided it is proportionate and provided you fit within some other criteria, which will be on the next slide.
Proportionality is really important for Section 158 and Section 159. So, you've got Section 158 which is the general provisions, and then you've got 159 which focuses specifically on recruitment and promotion. And you use that when you have a tie-break scenario, when you have candidates that are equally qualified as each other, they say candidates need to be of equal merit, and then if you fit this other criteria, which I will talk about in a second, you are able to select the person with a protected characteristic in priority over those without the protected characteristic. But that only works if you do not have a policy of treating people with a protected characteristic more favourably. That's where a lot of the initiatives that we see, and people are trying to be really creative with this because they know there's a problem with diversity and they want to do something about it, and so they are trying to be creative.
But very often it falls down on this point, the policy point. And we add in about proportionality. I don't know if you wanted to add anything in there Jag, but I am going to deal with all of these in detail.
Jagtar Singh: No, carry on, I'm adding some of the links (inaudible 18.18).
Nicola Brown: Okay, so the next slide please Jess. So, Section 158, when I talked about the criteria that you need to fulfil in order to use Section 158 are set out on this slide here. So, you need to ‘reasonably think’, or employers need to ‘reasonably think’, and ‘reasonably think’ is the phrase that is used in the legislation. It's a very low threshold, we're not talking about sophisticated data here to try and justify the use of it. You just need to look at your workforce data, basically, and if you think that one or more of these apply, you can get into the realms of using Section 158. So, those with a protected characteristic suffer a disadvantaged connected to the characteristic, those with a protected characteristic have needs which are different, or that participation in activity by persons with a protected characteristic is disproportionately low. So, you can use one or more of those, and it tends to be that third category that we see used to justify Section 158. And if you go to the next slide, Jess, there are some examples. So, what we see, what tends to be used by the Fire and Rescue Services we work with, are targeted advertising, so going out and putting adverts so that you know they will reach particular communities, for example. Providing opportunities exclusively to the target group, and often with Fire and Rescue Services we are seeing open days which are provided for women only, or for BAME staff only. I will come onto one caveat to that in a minute. Internships or work shadowing, that's very popular. Support and mentoring, also very popular. And training to enable disadvantaged groups to gain employment. All of those things are permissible under Section 158, and if we go to the next slide, Jess. (TC 00:20:00)
This is the point I want to make about Section 158 and what everybody needs to think about before they launch into it. It's this point of proportionality. You cannot go further than you need to, to achieve your legitimate aim. I don’t think anyone's going to argue that wanting to improve the diversity of a workforce is a legitimate aim, it is. But you cannot go further than you need to, and you need to look at the disadvantage that would be suffered by the group that do not share that protected characteristic and balance it out with the benefit that will be achieved, and how those who have the protected characteristic would benefit. That's a really important exercise to carry out, you cannot go further than you need to. And again, employers fall down on that point sometimes.
An example of that with training and selective training would be, if you've offered training to all groups but you found that a disproportionate number of, say, BAME candidates, or women, do not take part in that training. You could then take the step of saying, okay, now I'm going to offer the training to BAME candidates only, to women only, but you have already offered it to everybody, so that would be an example of you could then move into Section 158. Jag, do you have anything to add to that?
Jagtar Singh: There's only one brigade that I am aware of that used 158, and that was West Midlands Fire Service. They openly, proudly advertise it, promote it. I've also subsequently met the white officer that didn't get the job, and he was so positive about the use of that
practice, he said I didn't get the job, but on this occasion I know why the brigade did it and I'm really supportive of it. So, using Section 158 isn't something that you just use, it's something that you need to ensure all staff are aware of, the benefits of it, and why it's being used. It's very rare that we will use it because, as an experienced interviewer and officer over many years, you never get to a situation in an interview where two people are equally able to convince you that they should be appointed to the job.
Nicola Brown: Can we go onto the next slide Jess, because what Jag's referring to there is Section 159, sorry, which is about the selection and recruitment, but 158 is the one that's very popular. Just to dispel some myths about 158 before we move onto 159, which I actually think is the more controversial Section. Sorry Jag.
Jagtar Singh: Yes, [Section] 158, when I was in the West Midlands we were one of the first brigades to offer training for local community members in what was called access courses. They were very popular and they did a lot of good work, and I think London Fire Brigade were also a fantastic example of those courses. Why they became unpopular, I just cannot for the life of me work it out. Maybe one of those things is that everybody wants a shiny new tool, everybody wants to do something different. Why do something different when things that you've done in the past have worked? If there's one lesson I would say about positive action is, you've got to start it early. Positive action will not think for you if you think four weeks before or six weeks before a recruitment campaign you can do positive action. It is a long-term, cultural change piece; it has to involve all your staff and all of your officers, because it cannot work with one dedicated team. It cannot work in a short sprint, it's a long-term marathon.
Nicola Brown: I agree with that, I think it's making diversity everyone's responsibility, isn't it. The trouble is when you sometimes have specific diversity officers is that people don't think it's their responsibility, and actually it is, in my view. Just to move on to some of the myths about [Section] 158, the questions that come to me a lot. The first is we can't offer training to a particular group of potential candidates only. Well actually, I think you can, I think that fits under Section 158 provided it is proportionate, provided you've thought about that balance. And you also need to think about when you're offering the training, and this is the point I made earlier when we did the quiz. If you're offering that specific training to those with protected characteristics during the recruitment process, there is a risk that you have tipped into Section 159 and that you have a policy of treating those with a protected characteristic more favourably. There is not case law on this, and I haven't seen a challenge on that particular point, but my legal view is that it is open to challenge.
So, the final bullet point, the myths on this slide, was that staff networks are for those with protected characteristics only. I sometimes have that question put to me and they don't have to be, basically. My view is that, provided people are supportive of what is being discussed in the network groups, it is beneficial to have others coming along to gain, kind of, an insight, really, into what is being discussed at the groups. But I know that there are some concerns about that, and I have had groups coming to me saying but we actually don't want people who do not share the protected characteristic coming to the meeting, and I understand that from a sensitivity point of view initially, but as a broader policy, my view is that it is more beneficial
to open the groups up. Jag, do you have any views on that?
Jagtar Singh: So, I would ask the LGA to consider a future session on the benefits of staff networks, which we as AFSA would be happy to run. AFSA are very clearly following Nicola's clear view, which is where an inclusive group, (mw 26.07) Asian Fire Service Association, but I'm sure Nicky would come in and speak, when you come to our events they are predominately what the fire service looks like but probably a bit more BAME and more Asian people in the audience than you would expect. However, I do offer safe space for Asian fire fighters and Asian staff to get together if they wish to. We've rarely been asked to do that. Where you have a group, staff network set up purely for disabled or women, you have to ask the question, do you not want allies there? And I think the strongest staff network that promotes people of a particular characteristic and using allies is Stonewall. They have built themselves up from a positive of weakness to a position of fantastic strength and political involvement because they used the ally model. So, if we were to do a session in the future, it would be the benefits of staff networks, the benefits of allies, and I think the allies also works towards positive action. You need change agents in your service, you need allies, you need people who understand it and can promote it, who can have the open discussions in the canteens, because the mythology around this is as large as the facts around positive action. We must dismiss the myths around positive action.
Nicola Brown: Okay, I'm going to get to Section 159 because this is the one that causes controversy. Jess, if I can have the next slide please. So, Section 159, this is about recruitment and promotion and this is what we have case law on, the ET case on. So, an employer can select a candidate with a protected characteristic over a candidate who does not have that characteristic, but only when candidates are as equally qualified as each other, the employer does not have a policy of treating people with a protected characteristic more favourably (and that's where we get into the quota scenario), and taking action is proportionate means of achieving a legitimate aim. So, you see the proportionality point is just as relevant to Section 159 as it is to Section 158. Jess, if I could have the next slide please. So, this is about the decision about who you recruit and promote, and I think this could have the biggest effect on workforce diversity. Section 158 is great, and we are making progress with Section 158, but I actually think Section 159 is the most powerful section we have. The difficulties we have with it are this policy point and the tie-break scenario. So, the guidance that we have that sits alongside the policy act says that it should only be used in tie-break scenarios, so where people are of equal merit. But how often in reality does that actually occur?
And I think lots of employers struggle with that point. And one solution which has been touched upon, and which I think some organisation have discussed is this using a pass or fail mechanism, so if you decide that out of your group on interviewees, 20 have passed, you can deem them all of equal merit, and it is at that point that you can apply Section 159 and select those that have protected characteristics. Now, we're going to use the chat function again. Do you think that works? Would you encourage the use of that? Do you think that's a good thing? Maybe say yes if you think that that works. And this is acknowledging the fact that employers really want to push the boundaries here and they want to use positive action in a way which impacts the diversity of their workforce. I've got a big no, I've got a yes. It feels borderline, yes I agree Fiona. And we'll move onto the next slide Jess because (TC 00:30:00), it is borderline, but my view is, and speaking to employers, is that they feel that for years they have been trying to improve diversity and nothing has changed, and certainly not quickly enough, and so they want to push boundaries. And Cheshire police had been using, and the judgement talks about the many different ways in which they have tried to use positive action, Section 158, to improve diversity, they were really supportive of it, they thought it was admirable. And they'd got to a point where their diversity figures did not reflect the census and they thought that more needed to be done, so they decided to apply Section 159 in a creative way. So, the facts of the case is that Mr. Furlong was a candidate, a white, heterosexual, non-disabled male who applied to be a police officer. He had got through the written application form, he'd gotten through the written assessment, and he passed the interview as well. And 127 people passed the interview and were put into a pool. And at that point, Cheshire police took the decision that because diversity wasn't what it should have been, they should apply Section 159, they should say that all those who passed the interview were of equal merit, and if that were the case, they could apply Section 159 and they could select those with protected characteristics over those who didn't. So, Mr. Furlong didn't get selected, and he brought a discrimination claim against police constabulary, and the employment tribunal found that he had been discriminated against on the grounds of race, sex, and sexual orientation, and that the steps that the police constabulary had taken were not in line with Section 159. It's a really interesting judgement, it's 34 pages so it's not the shortest, but I do think it's fascinating and worth a read if you want to try and understand what courts and tribunals will be looking at when they assess Section 159. If we go through to the next slide please Jess.
Jagtar Singh: Just hold on that slide for a second. Now, on the face of it, that looks like, oh Mr. Furlong was really discriminated against because the findings were found against the force. However, AFSA have also got good links with the police, and we know that Mr. Furlong is also the son of a police officer, Mr. Furlong that had way, way over and above preparation and training by his father, nothing wrong with that, but maybe had more inside knowledge that if a protected characteristic candidate had been given by the police, that would have been seen as positive discrimination. So, this case is a lot more complex, but technically, and that's where the judgement was, technically the force made errors in the way it applied 159, but in principle, morally, they were doing the right things. We could probably debate this for another 45 minutes, but I just wanted to put the other angle to the Furlong case.
Nicola Brown: You're absolutely right, and there is something there, isn't there, about people who have relatives who are within an employer, and have a distinct advantage over those who don't, and lots of fire and rescue services I speak to are now looking into that and trying to offer training to those who do not have the same advantages of those who have family members within the group.
F: Could I say something here? Because it's also the case where there is a close relationship between an interviewer and an interviewee, that you never find out in advance of the interview but you find out later when you get the job. That's also a very difficult one, if they come from different fire services, there's some type of link between the two and you never find out until later, and I don't know how you deal with that one.
Nicola Brown: Well, I think that's part of the culture change piece generally, and looking at interview processes, and I know fire and rescue services are doing that and are looking at, first of all, panels, whether you have mixed panels, whether you have buddy systems, so you have someone with a protected characteristic with someone that doesn't. You circulate interviewees between different buddy groups so that you get a fair representation, and certainly looking into the background as you say, I think there is an overhaul generally to be had of the interview process.
Jagtar Singh: I would be stronger than that, Nicky, and I would say to people who are doing interviews, and there should be a declaration of interest on every form, of every interview, to say do you know this candidate in any shape or form, and that declaration should be declared. Not that they should be barred from the interview, could be saying oh I worked with the father of this young man, I've met him once. That way, at least it's out in the open rather than you finding out later. If you found out later that the, I don’t know, the interviewer is a parent or was a neighbour of this individual and helped to bring him up for years, then that would be a conflict of interest, in my view.
Nicola Brown: I agree.
Jagtar Singh: It should be declared during the interview to the chair of the panel, and the chair of the panel should declare to the panel if they know someone.
Nicola Brown: Agreed, and that is probably part of overhaul of the interview process, ensuring that that step takes place, And Jess, can we go to the next slide please. I'm conscious that we haven't got much time, so I want to get through these. The interesting points to note from the Furlong decision are that they found that the police service had artificially lowered the threshold by saying that you'd either passed or failed, it was too low, and there are a number of problems with that. One is a kind of lack of confidence that the public will have in the service, particularly something like the police service or the fire service, where they feel that pass marks have been artificially lowered. They found that it wasn't a proportionate response to addressing the lack of diversity, they hadn't properly balanced the risk to someone like Mr. Furlong and the damage to him as compared to those who gained the jobs with protected characteristics. So, this was, unfortunately, and example of how positive action had been used in a discriminatory way. What happened through the employment tribunal hearing was that they scored the 127 individuals, there was a tick box exercise which was used essentially, and using that, the claimant solicitors, Mr. Furlong's solicitors worked out that Mr. Furlong was actually kind of fourth from the top when they listed them, and you couldn't possibly say that 127 people were as qualified as each other, so there was a problem there. That doesn't mean to say that you can't use it, it was just too big a pool to apply Section 159 to. And I think the point from me to take away from this, is that I don't want people to be scared of using Section 159 because for me, it is the most powerful tool in improving diversity, but you do need to be very, very careful about when you use it. And as to proportionality, I think you have to have gone through and used Section 158 first before you move on to Section 159. Can we go to the next slide please Jess. So, some of the myths. We can't have targets about recruitment of particular groups. Well you can have targets, what you can't have is quotas, so that's false, and I spoke about that at the beginning. So, a quota is saying we must have 50% of our candidates as women, and you can't say that. You can say we can have an aim that 50%, well loads of organisations have aspirational targets, you look at FTSE companies and their boards, you look at the NHS and their boards, they have a 50/50 target that they wanted to reach by 2020, and they nearly got there. They're not quotas, they're not saying that you will pick someone who is less qualified because of a protected characteristic, but a target has the benefit of focusing minds, and I think they are to be used, I think they are beneficial to organisations. The final myth, we can advertise for a role where we want BAME candidates only to apply to address the lack of diversity. This comes up a lot at the moment.
It depends what you're advertising for. So, if you're advertising for training, yes I think you can do that, because I think it falls under Section 158, and you don't have the rule under Section 158 about not being allowed a policy. If you're advertising for a position and employment, you're in difficulties, that's Section 159 territory and you have a policy in that case if you're saying you only want BAME candidates to apply, and they are at risk of a positive discrimination claim. What we're seeing a lot at the moment, I've got a lot of employers who are coming to me at the moment saying, 'But we've got a real problem with diversity with our NEDs (ph 38.19),' whatever position. 'I want to advertise for BAME only NEDs,' and I'm saying, 'Well I think you're going to fall short of 159.' My advice would never be, 'No you can't do it,' because it's a decision for employers to make based on what risk and what appetite they have for risk, and whether they will be challenged. But there is a risk there of a positive discrimination mind, in my view. Not for training, but for when you're offering employment to a particular group.
Can we have the next slide please, Jess? This is my final slide I think, and this is about culture change, and Jag touched on this in the beginning. Positive action, the use of positive action, to my mind is to be encouraged, but it's part of a much bigger picture and it's part of culture changes within organisations. This isn't just fire and rescue services that need to think about culture change, this is happening across the board. Capsticks as a firm, we advise public sector organisations and many, many organisations are looking at this.
Part of whether positive action works is about attracting a more diverse workforce, but it's about keeping that diverse workforce and ensuring that they can make and achieve promotions, and make it into senior positions, and that will only happen when people feel valued and you can create an inclusive workforce. I don't know what's happening in your particular fire and rescue services, but I know that a lot are addressing this and some are trying to achieve open cultures, and looking at what's going on in the NHS which is promotion of just and learning cultures, and trying to focus on the fact that you're not trying to pin the blame on individuals, you're trying to look at the system as a problem and what has happened to create a system, (TC 00:40:00) to create a particular issue. And I think that's true of discrimination and diversity as well, it's not pointing the finger, it's saying we have an issue and we're going to do something about it, and that is through the use of positive action but that goes hand in hand with culture change.