Embracing positive thinking

Responsible utility employers are recruiting more women in male-dominated roles, but positive discrimination is circumscribed by strict dos and don’ts, say Catherine Shepherd and Phillip Chivers.

Earlier this year, an engineering client, embarrassed at the continuing lack of women graduates they were recruiting, approached us wanting to take action. They wanted to create a job advertisement that expressly limited applications to women.

The client’s aim was entirely laudable – statistics clearly demonstrate that males dominate the pool of candidates applying each year. However, taking steps that positively favour women over men, even where well-intentioned, must always be explored carefully against the legal background of what is permitted, as well as assessing whether the proposed step will in fact produce the desired outcome. Very often there is a wider picture to be addressed.

UK law does provide some scope for employers to take positive action to recruit women where there is a gender imbalance and, in a limited circumstance, to actually positively discriminate by taking on a female candidate in place of a man.

A starting point is to encourage more women to apply for roles in the first place by taking steps to increase the pool of women from whom candidates are selected. S158 Equality Act 2010 allows employers to take positive measures in this regard, providing such measures are a proportionate means of achieving a legitimate aim. Measures envisaged by the Equalities and Human Rights Commission Employment Code include:

•    targeting advertising at women – that is, advertising jobs in media outlets likely to be accessed by the target group;

•    making a statement in recruitment advertisements that the employer welcomes applications from women;

•    providing opportunities exclusively to the target group to learn more about particular types of work opportunities with the employers – such as internships or open days

•    placing training opportunities in work areas or sectors for the target group.

Taking these actions means an employer will recruit the best candidate – and, ultimately, that candidate may still be a man.

Further down the line in the recruitment process, the employer shortlists two candidates – one male (A) and one female (B) for a vacancy. Both A and B perform equally well and are equally regarded as ideal for the role. Can the employer favour the female candidate B over the male candidate A?

In short, yes. Under s159 Equality Act 2010, the employer is permitted to recruit B on the basis that B is a woman and the proportion of women in the employer’s workforce is disproportionately low. In other words, all things being otherwise equal between A and B, the employer can positively discriminate in favour of the female candidate to address a gender imbalance.

So, is this the answer to addressing the gender imbalance? The provision is not as far reaching as it may appear. It does not permit employers to impose quotas or automatically favour women in recruitment. Instead, every case must be considered on its merits.

In reality, it only really operates in a “tie-break” situation where an employer is faced with making a choice between shortlisted candidates of equal merit. It is often difficult for employers to eliminate all subjective elements from their assessment of candidates and employers, fearing a challenge from the unsuccessful male candidate arguing that they were the better candidate, are unlikely to feel confident relying on s159 – particularly given the absence of any real cases on this point.

Equally the provision itself does not apply if the employer has an existing policy of treating women more favourably in the recruitment process. So, if an employer, for example, shortlists all women applicants, the option of then offering the job to a female candidate solely in reliance on s159 falls away.

So what steps did the client looking for a female engineer ultimately undertake?

Our client undertook a detailed review of their recruitment process. A first step was to target their advertising going forward, focusing on images, wording and where they advertised to maximise the chances of female graduates applying.

They recognised, however, that while such steps meant they may be best placed to attract what few female graduates there were, it had no real impact on addressing the fundamental problem of there being a lack of women graduates coming through in the first place.

They therefore devised a programme to engage with local colleges and schools by introducing the sector and the exciting and enormous range and benefits of careers within it. A key theme is to show how individuals already involved in the sector are making a real difference – and existing female engineers are encouraged to participate as role models. They also hold open days, offer internships and provide sponsorship opportunities. Taking steps to encourage female staff to stay within the business once recruited is also high on the agenda.

It is too early to say what impact these steps will have long term on the number of female engineers they will ultimately employ and retain, but by taking these steps now, they will inevitably be making some progress long term to redressing the balance.

Author: Catherine Shepherd, lawyer, and Phillip Chivers, legal director, Osborne Clarke,
Channel: Operations & Assets
Tags: Recruitment and Training

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