All female shortlists deemed unlawful

Jo Faragher

An attempt by business secretary Vince Cable to bring in all-female shortlists for top executive roles has been ruled unlawful by the Equalities and Human Rights Commission (EHRC).

He had asked the EHRC to advise him on the legality of excluding men when drawing up roles in FTSE-listed companies, as part of an effort to get more women on boards.

However, Laura Carstensen, an EHRC commissioner, has issued new guidance which makes it clear that using women-only shortlists is unlawful under equality law.

The guidance states that it would constitute “unlawful sex discrimination to select a person for a role because of their gender”.

It adds: “The law does not permit positive discrimination when making an appointment or a promotion. However, the law provides scope for companies to address any disadvantage or disproportionately low participation on boards by enabling or encouraging applications from a particular gender, provided selection is made on merit.”

The push for all-female shortlists came after the publication of a report earlier this year by Charlotte Sweeney, a former head of diversity at banks HSBC and Nomura. She had suggested putting at least one woman on the shortlist for all board positions. 

According to the EHRC, the only way positive action like this would be permitted would be if people of one gender are under-represented in that sector or company – and then the measures adopted must pursue a “legitimate aim” of addressing the cause of the under-representation.

The Insitute of Directors has already rejected the idea of all-women shortlists, saying it would be better to help boards appoint more women through measures such as aspirational targets, wider advertising and mentoring or shadowing programmes.