No Short-Cuts When it Comes to More Women on Boards

The Equality and Human Rights Commission has published guidance on how equality law applies to current well-publicised initiatives aimed at boosting the number of women on UK boards.

For businesses feeling under increasing pressure to appoint more board-level women, this timely and helpful guidance should act as a brake on those tempted to make token appointments, in the rush to increase female representation.

The guidance reiterates the legal position which, in essence, means that board appointments must be made on merit after a fair and transparent recruitment process.

In particular, women-only shortlists for board appointments are, in the EHRC's view, unlawful.

Given the current state of EU case law in this area, I agree with this interpretation of the law on shortlists.

In addition, the guidance makes it clear that making appointments based solely on gender will also ordinarily be unlawful.

As such, there are no lawful short-cuts for those looking to make a quick fix in this area.

In addition to the strong legal arguments against this there is also the concern that women must be appointed on merit and it is essential for organisations to invest in their talent pipeline to achieve real change.

Given these legal constraints, what can businesses do in practice to increase board room diversity?

There is provision under the law for companies to take positive action to address a low representation of board-level women, providing selection is made on merit.

This includes wider advertising for jobs, mentoring and shadowing programmes. This would develop a pipeline of talent at more junior levels.

In addition, supporting agile work cultures at a senior level, reserving places for women on training courses in board leadership and setting aspirational targets for increasing the number of women within a particular timescale will also work towards improving progress.

Finally, reviewing the practices of any executive search agencies used, auditing the recruitment process for unintentional gender barriers and unconscious bias, for example, requiring candidates to have a particular length of service or experience where it is not a genuine requirement of the role, and training those involved in selection decisions, are all practical and necessary steps for those companies wishing to make progress with gender representation.

These kinds of practical steps are key to achieving the behavioural and structural change needed to avoid the risk of any man or woman being appointed simply because of their gender.

While they may not produce overnight change, as the guidance reiterates, the alternative - of simply making a token female appointment - is unlawful and, in the long term, provides no sustainable solution to boardroom diversity.

Audrey Williams is head of discrimination at law firm Eversheds