Women in the Boardroom: the Legality of All-Women Shortlists

As a general rule, women are underrepresented in most high paid or high profile professions. While many people believe that this problem will correct itself overtime, for others, positive discrimination is required to catalyze that change.

Positive discrimination involves giving disadvantaged groups who face discrimination in everyday life, such as women, the disabled or ethnic minorities, favourable treatment on the basis of their protected characteristic. An example of this is all-women shortlists for jobs, whereby all the candidates are female and the success of a woman is guaranteed.

All-women shortlists, somewhat controversially, have been used by some political parties to increase their number of female representatives. Recently, however, Business Secretary, Vince Cable, floated the idea to get more women onto the boards of large companies in light of the low numbers that are currently in such roles. Amongst the FTSE 100 companies, for example, only 22% of board members are female, with even less women occupying executive positions.

However, recent guidance issued by the Equality and Human Rights Commission (EHRC) indicates that such a move would constitute unlawful sex discrimination under the Equality Act 2010 and EU law. The guidelines, entitled ‘Appointment to Boards and Equality Law’, advised that both all-female longlists and shortlists would be unlawful, unless they were not pre-determined on the basis of gender and simply reflected merit.

Gender is a protected characteristic in both UK and EU law. Article 2 and 3(3) of the Treaty of the European Union and Article 8 and 157 of the Treaty on the Functioning of the European Union, which have been transposed into national law, make this clear. Under Part V of the Equality Act, as well as Article 23 of the European Charter of Fundamental Rights, positive discrimination is allowed, but only in very limited circumstances. Firstly, any such measures must be proportionate to the disadvantage that women face in that sector, and in light of the number of positions available. Secondly, and importantly, positive discrimination can only be used to select an individual where the candidates are of equal merit. As such, positive discrimination on the basis of gender will only be acceptable in a ‘tie-breaker’ situation. The Court of Justice of the European Union (CJEU) interprets any exception to the principle of equal treatment narrowly, and thus, it is often difficult to justify positive discrimination measures. What is clear, in light of the EHRC’s guidance, is that all-women shortlists are likely to fall foul of UK and EU anti-discrimination law.

However, the EHRC did propose alternative ways to rectify the disadvantage that women face in the workplace. In particular, it would not be unlawful for the government or companies to organize networking events and mentoring schemes for women. In addition, although formal quotas are often problematic under EU law, aspirational targets for women on boards were acceptable. The Government is currently aiming to have 25% of FTSE 100 board positions occupied by women by 2015.

Employment Solicitors in Glasgow

If you are an employee or employer looking for advice about discrimination law, or for any other employment law matter, Employment Law Glasgow's specialist lawyers can help. To get in touch, please complete our online enquiry form. You can also call 0141 811 0224.