Utility Week

Operations & Assets 20 | 24TH - 30TH NOVEMBER 2017 | UTILITY WEEK Market view E arlier 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 posi- tively 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 pro- duce the desired outcome. Very oen 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 envis- aged 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 adver- tisements that the employer welcomes applications from women; • providing opportunities exclusively to the target group to learn more about particu- lar 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, ulti- mately, that candidate may still be a man. Further down the line in the recruitment process, the employer shortlists two candi- dates – 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 candi- date 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 pro- portion of women in the employer's work- force is disproportionately low. In other words, all things being otherwise equal between A and B, the employer can posi- tively 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 per- mit employers to impose quotas or automati- cally 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 oen difficult for employers to eliminate all subjective ele- ments from their assessment of candidates 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. 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 – particu- larly 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 indi- viduals already involved in the sector are making a real difference – and existing female engineers are encouraged to par- ticipate as role models. They also hold open days, offer internships and provide sponsor- ship opportunities. Taking steps to encour- age 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. Catherine Shepherd, lawyer, and Phillip Chivers, legal director, Osborne Clarke Key points Employers need to be mindful of the law when seeking to redress gender imbal- ances in the work place. Positive discrimination in favour of female candidates is allowed, but only within prescribed boundaries. Recruitment advertising can be aimed at a target group of women, but male candi- dates cannot be excluded. Quotas or women-only lists are not allowed. Ultimately, employers wishing to redress gender imbalances may have to go out to the undergraduate community and sell the benefits of an engineering career.

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