In 2012 many Boards of Directors throughout the Western and developed world are still “all male and all white”. Since 1975 The Sex Discrimination Act in the UK has advocated equality and made it unlawful to discriminate against anyone because of their gender. By Liz Whitehead, Senior Solicitor at Hart Brown.

But women are still under represented in the most senior roles in companies, and, whilst equally qualified, still paid less than their male counterparts. Most cases of sex discrimination cite inequality of pay, but others also claim indirect discrimination based on lost opportunity as a result of child care commitments. The Equality Act 2010 gives companies the option to take positive action to appoint women to roles previously undertaken by men. This enables the company to evaluate the qualifications of both male and female (and ethnic minority) applicants and, where candidates are equally qualified, appoint the most under represented. (Section 159 EqA 2010).

Whilst this part of the Act has been in force since April 2011 the opportunity to increase female Board Members has made little impact. In October 2011 David Cameron encouraged companies to voluntarily set internal targets to increase female Board members. Cameron also commented (at the Commonwealth heads of government summit in Perth) that companies recruiting more female board members, in response to a report that FTSE 100 directors averaged £2.7m in 2010, would drive down pay rates. Does this imply that women directors are paid less, expect less, and will reward themselves less for success than their male comparators?

In 2005, in Norway and Finland the Governments directly intervened by setting targets for the number of women on Boards to be increased to 44 percent . Government intervention did result in a significant increase. But where companies remain “all male and all white” is it possible to prove direct discrimination? The Equality Act 2010 states that it is direct discrimination to treat a person less favourably because of their sex. But is the failure to appoint women to the Board because of their sex, or is it because women lack relevant experience? Can a woman obtain that first Board appointment, without positive action? And the failure to take positive action does not prove discrimination. There is currently no obligation to impose positive action on a company. Selection is on merit. If two candidates have equal qualifications, a man may still be legitimately preferred over a woman.

The question remains that if there are more female graduates in the professions than male (and this is increasing year on year) why is academic success not transferring automatically to the Board room? Women may be perceived by their employers as putting their families before their careers, and it has been demonstrated that time out of the work force impacts negatively on women’s career prospects. Historically women are more likely to be carers, and this capacity to care, may suggest greater concern with “work life balance” than men. But men are increasingly seeking more family time, benefitting from paternity leave, and are now more conscious of balancing career and family than at any time previously.

Maternity and Paternity leave regulations are giving more statutory rights to men. Men will be able to benefit from 4 months statutory paternity pay from March 2012, and have the right to further periods of unpaid leave. Whilst fathers (or civil partners) will not qualify to the equivalent of 39 weeks Statutory Maternity Pay they are obtaining increasing statutory recognition and rights as carers. The right to request flexible working is not limited by gender- and it would be discriminatory to do so. It would seem that men who benefit from paternity leave, will also benefit from flexi-working, working from home or working reduced hours, or starting later and leaving early to collect children from school. If society is able to change to recognise increased flexibility and increased paternity rights, then women should also benefit from recognition of equality in the work place. There is no longer any reason to categorise women as carers and men as career orientated.

The Equality Act initially sought to protect women from dual discrimination (including that of age and sex) but the government has latterly decided not to proceed with the dual discrimination part of the Act. Older women at director level may well face prejudice, but discrimination, either because of age or sex, will remain predictably difficult to prove. Whilst legislation can change social attitudes and remove barriers, discrimination is never overcome immediately.

A Government can implement change by giving compulsory quotas to companies, forcing them to increase the number of women directors. But the real change will come when companies realise that the women who have been appointed to the Board room are there on merit and are not naturally more difficult, aggressive, or judgmental than men. Objectively women have acquired legal rights, educational equality, and the right to self justification and financial independence. But, according to the Davis report it will be 2015 before there is a significant increase in the number of women directors. www.hartbrown.co.uk