Further legal clarification is required for all-women board shortlists, says Eversheds

Eversheds partner Audrey Williams has commented on the announcement of recommendations from Charlotte Sweeney to increase the number of women on British boards, following her review of the Voluntary Code of Conduct that the executive search industry uses for board recruitment.

One of the recommendations is that the equalities and human rights commission should create guidance on the legality of women-only shortlists for board recruitment. However, Williams said that the difficulty with all-women shortlists is that it requires a selection to be made on the basis of gender, which, on the face of it, directly contravenes fundamental principles of EU law prohibiting sex discrimination.

Additionally, she pointed out that while there is an exception in EU law that allows derogation from the principle of non-discrimination, with a view to ensuring full equality in practice between men and women, by ‘adopting measures providing for specific advantages in order to make it easier for the under-represented sex to pursue vocational activity or to prevent or compensate for disadvantages in professional careers’, this still requires assessment on merit and other conditions to be met.

Williams continued: ‘The problem with this provision is that exactly what is, and what isn’t, permitted by EU law is not clear. It seems that an all-women shortlist will only be lawful if, before compiling the shortlist, all potential candidates [male and female] are objectively assessed on their merits by reference to the requirements of the post and taking into account “all criteria specific to the candidates”. It is questionable whether it is possible to perform that kind of assessment without interview, so the “shortlist” could only be compiled quite a long way into the recruitment exercise.

‘Furthermore, it could only be an all-women shortlist if, after performing that assessment, all of the women to be shortlisted were as “equally qualified” as all of the men. For that reason, any provision or guidance in support of all-women shortlists would have to be heavily qualified.’