Section 159
Tie-Breaker Rule
The definitive authority guide to candidate selection when merit is proven as identically equal. Legal boundaries, risk mitigation, and institutional fairness.
Snippet Goal: How Does the Police Tie-Breaker Rule Work?
The Section 159 Tie-Breaker allows selection based on identity only when two candidates are of strictly equal merit following assessment.
Under the Equality Act 2010 (Section 159), a police force can lawfully choose a candidate for recruitment or promotion because they have a protected characteristic, provided: (1) they are as qualified as the other candidate(s), (2) the force has evidenced underrepresentation or disadvantage for that group, and (3) the decision is proportionate. The force must avoid automatic preference policies and make every decision on an individual, case-by-case basis.
Legal Lens: The "Equal Merit" test is the structural safeguard. It prevents using Section 159 to promote a less-qualified candidate over a better one, which would constitute unlawful positive discrimination.
The Core
Deadlock Protocol
In the highly structured world of police promotions—governed by the National Police Promotion Framework (NPPF) and the Competency and Values Framework (CVF)—selection boards are designed to extract granular, measurable evidence of merit. Usually, this process results in a clear ranking. However, scenarios arise where two candidates, following an exhaustive board, are judged as being of identically equal standing for the role.
"Equal Merit" is not a low bar; it is a statistical and operational impossibility for most standard boards. When it is reached, the force is at a selection deadlock.
The Equality Act 2010 provides the tie-breaker as the lawful relief for this deadlock. Section 159 allows an employer—in this case, the Chief Constable or their appointed board—to use a protected characteristic as the final deciding factor. This is most commonly used to address the chronic underrepresentation of minority ethnic officers or female officers in senior leadership positions.
However, the force must be able to prove that the candidates were "as qualified as each other." This doesn't mean they both passed the board's minimum threshold. It means they sit at the same point in the meritocracy. If Candidate A scored higher than Candidate B, Candidate A has superior merit, and Section 159 cannot be legally applied. To do so would be to commit direct discrimination against Candidate A.
Statutory
Compliance
Equal Merit
The bedrock condition. Candidates must be objectively, rigorously assessed as being as good as each other for the specific vacancy.
Underrepresentation
The force must have reasonable belief, backed by data, that the characteristic is underrepresented or socially disadvantaged in that rank or role.
Proportionality
The use of the rule must be a proportionate means of achieving the legitimate aim of a more representative workforce.
No Quotas
The force must not have a policy of automatic preference. Each decision must be a distinct, individual assessment of the candidates' merits.
The Burden
of Evidence
The line between lawful "Positive Action" (Section 159) and unlawful "Positive Discrimination" is razor-thin. If a force promotes a candidate under the guise of Section 159 without first proving equal merit, they have committed direct discrimination against the unchosen candidate.
This is the scenario that led to the landmark Cheshire Police (2019) case, where the force attempted to use positive action principles in recruitment. The Employment Tribunal ruled that the force had effectively lowered the bar for minority candidates by considering them "equally qualified" simply because they passed a broad pass/fail threshold, rather than comparing individual merits.
A tie-breaker is a scalp-edged legal tool. If used incorrectly, it destroys the meritocracy and exposes the force to devastating litigation and a total loss of institutional confidence.
To mitigate this, forces must ensure that their board scoring is granular enough to distinguish between candidates. If they find themselves with a tie, they must be able to produce the evidence trails—interview notes, scoring spreadsheets, and competency mappings—that prove the deadlock was genuine.
Strategic Safeguards
Individual Assessment
Panels must avoid thinking 'it's our turn to promote a [demographic]'. They must focus solely on the two individuals in front of them and their specific assessment data.
Evidentiary Baseline
The force must have a clear, pre-existing Equality Impact Assessment (EIA) for the promotion process that includes a protocol for tie-breaker scenarios.
Data Integrity
The 'underrepresentation' claim must be based on a current workforce dataset, not a general strategic feeling. The force must show the characteristic is actually missing at that specific rank.
Proportionality Filter
The panel should consider: Is there a less intrusive way to distinguish these candidates? Could a second targeted interview resolve the merit gap before resorting to Section 159?
Lawful vs
Unlawful Cases
| Scenario | Lawful? | Legal Justification |
|---|---|---|
| Two Sgt candidates score exactly 84/100. Force picks the female candidate to address Inspector gap. | LAWFUL | Section 159 applies as merit is identically proven and underrepresentation is evidenced. |
| Officer A (75%) vs Officer B (80%). Force picks B (minority) because both 'passed' the 70% mark. | UNLAWFUL | B is objectively less qualified than A. This is direct discrimination against A. |
| Chief issues mandate: 'All ties in 2026 must favor underrepresented groups'. | UNLAWFUL | Section 159 prohibits blanket policies. Every decision must be an individual assessment. |
| Equal merit tie. One candidate is disabled. Force uses disability as tie-breaker. | LAWFUL | Disability is a protected characteristic; Section 159 applies if proportional. |
| Equal merit tie. Force uses 'length of service' instead of protected characteristic. | LAWFUL | Forces are not compelled to use S.159. Using a neutral secondary tie-breaker is legal. |
| Force uses tie-breaker for a role where diversity is already high. | UNLAWFUL | No evidenced 'underrepresentation' means the condition for S.159 is not met. |
| Two identical candidates. Force holds a second targeted interview to find a differentiator. | LAWFUL | Good practice. Exhausting merit-based differentiation is preferred before S.159. |
| Force picks 'most diverse' candidate without a formal merit scoring board. | UNLAWFUL | Without formal scoring, you cannot prove 'equal merit'. This is rank discrimination. |
| Force uses S.159 but fails to document the board's deliberation process. | HIGH RISK | Lacks defense in a tribunal. The force must show its workings to prove legality. |
| Two candidates are essentially equal, but one has a slightly better sick record. | COMPLEX | Sick records are an indicator of merit/readiness. Use S.159 cautiously if a differentiator exists. |
| Force uses S.159 to promote an officer into a specialist unit for representation. | LAWFUL | Legally identical to rank promotion if equal merit and underrepresentation exist. |
| Candidates tie in interview but one has higher exam score. S.159 is applied. | UNLAWFUL | Total merit must be compared. The higher exam score differentiates their overall merit. |
Statutory
Backbone
Section 159 remains the most sensitive mechanism in the Equality Act. Its lawful application requires institutional maturity, total transparency, and an unwavering commitment to the principle of merit. For police forces, it is the tool of last resort for achieving a more representative leadership echelons.