UK: Employment Litigation Implications Of Recent Data/Reports Concerning “The Glass Ceiling”

Last Updated: 8 October 2008
Article by Robert Davies

Introduction

The focus of this note is to explore briefly:

  • what is meant by "the glass ceiling";
  • its relevance to the manner in which sex discrimination litigation may be conducted by Claimants generally; and particularly allegations asserting, either as a specific instance of discrimination and/or as background evidence in support of other allegations, that an employer has unlawfully hindered career progression; and
  • the steps that can be taken and may need to be seen to be taken in order to dispel or counter an assertion that such unlawful practices prevail within an organisation.

The Terminology

The expression "the Glass Ceiling" provokes strong opinions and views, ranging from a complete denial of its existence in the UK workforce to its assertion as an indisputable fact and a practical demonstration of endemic, perpetual gender bias within significant portions of UK business and political life.

An effective, although probably broader definition (in that it extends beyond gender issues), of the term is offered by BusinessDictionary.com as:

"Invisible but real barrier through which the next stage of level of advancement can be seen, but cannot be reached by a section of qualified and deserving employees. Such barriers exist due to implicit prejudice on the basis of [age, ethnicity . . . . . .and/or] sex".

An alternative formulation, which is perhaps more consistent with the Commission for Equality and Human Rights' (CEHR) own assessment of the glass ceiling as not merely "an impermeable barrier that blocks the vertical mobility of women . . ." but also "situations in which the disadvantages women face to men intensify as they move up organisational hierarchies". [Baxter & Wright: The Glass Ceiling Hypotheses, 2000].

The "Sex & Power 2008" report from the CEHR was published in the summer and it is worth summarising its findings as it has attracted significant coverage.

"Sex And Power 2008"

Now in its fifth year, this surveys the gender composition of 25 categories of positions and offices, including political office, heads of professional bodies, FTSE 100 company directors and top managers in the civil service: it aims to be "the annual index of women in positions of authority and influence in Britain".

The press release which accompanied the launch of the report contained the following statement from Nicola Brewer, Chief Executive of the CEHR:

". . . . . . . . a workplace forged in an era of 'stay at home mums' and 'breadwinner dads' is putting too many barriers in the way – resulting in an avoidable loss of talent at the top. We always speak of a glass ceiling. These figures reveal that in some cases it appears to be made of reinforced concrete . . . . .[the findings] are not just a 'women's issue' but are a powerful symptom of a wider failure . . . . . . .old fashioned, inflexible ways of working [are] preventing Britain from tapping into talent . . . . .such as disabled people, ethnic minorities or those with caring responsibilities".

The report characterises this as a "squandering of talent" and finds that in order to achieve equal representation a further 5,600 women would be needed in the 31,000 "top positions of power that it surveys", including:

  • 2,921 from the 18,781 public appointments
  • 436 from the 1,119 directorships in FTSE 100 companies

It further notes that there are only 46 directorships in FTSE 100 companies held by individuals with non-European ethnic backgrounds, of which 8 of whom are women.

Flexible Working Arrangements

There is a strong focus in the "Sex and Power 2008" report on the need for the utilisation of flexible working arrangements at all levels of seniority within an organisation and characterises some organisations as "offering time off for raising a family and flexibility linked to childcare grudgingly, as concessions that are a burden to business and those who are seen as not committed to the company".

It criticises a suggested greater reliance on long hours working, which "perpetuates a model of work that is almost impossible for women to see as allowing them to combine a full-time job with family life". (It is less clear on the empirical evidence to back up this contention but this is something that may well echo pressures in a 'credit crunch' environment).

The TUC response to the report was to the effect that:

" . . . . . . the softly-softy approach to breaking down the glass ceiling is not working. A firmer approach is needed so that women can reach the top on merit, rather than having to fight every obstacle that society puts in their way".

A meritocracy is the CEHR's aim too; merit and talent are not the exclusive preserve of one section of the population or another.

"Genuine equality of opportunity looks beyond the stereotype and asks what someone is good at".

But in the CEHR's view this has to be achieved through a more realistic, if not holistic, approach including good childcare and social care policies to level the playing field.

The TUC has not spelled out what form a suggested firmer approach should take although it has cooperated with the CBI and the CEHR in the publication of the 2008 document "Talent not Tokenism: the benefits of workforce diversity", which addresses suggested best practice approaches seen in various (commercial) organisations such as BT, Manpower UK, Serco and others to fill skills gaps, find new markets and understand customers. Its fundamental premise is that diversity within an organisation should be taken as a given in order to maximise competitiveness – the business proposition for diversity is compelling.

It suggests that providing diversity need not be expensive or time-consuming "but it does require a commitment from the top to trigger a change in culture and attitude".

The Female FTSE Report

The emphasis on leadership and setting good examples from the top down is a theme running through the Female FTSE Report (produced by Cranfield School of Management).

In 2007 it indicated that since 1999 the number of FTSE 100 boards with no women reduced from 36% to 24%.

The UKRC Publication, Transforming Boardroom Cultures: A Good Practice Guide to Inclusive Boardroom suggests that when promoting workplace culture and practice the key factors are

  • Championing of diversity from the Chief Executive downwards
  • Accepting that senior people also need flexibility
  • Ensuring that women returning from maternity leave are not treated as if their career progression is over.

The Female FTSE Report 2007 concluded that the "key change makers are the chairs of boards who have been prepared to lead the debate on gender diversity, to insist on female candidates, to mentor aspiring female directors and to run their boards in exemplary ways".

So is compulsion at least in terms of the gender composition of the boards of companies, an inevitable or necessary step in the UK?

Compulsion For Gender Balance At Public Company Board Level?

Norway has recently gone down the road of compulsion. As of 1 January 2008 it became mandatory for all Norwegian companies listed on the Oslo Stock Exchange (OBX) to ensure that at least 40% of directors were women.

Non-compliance can result in a company being de-listed from the OBX. The Norwegian government also has powers to dissolve a company for not fulfilling this requirement.

The gender requirement applies to all publicly owned enterprises including:

  1. State-owned limited liability companies;
  2. Public limited companies;
  3. State-owned enterprises;
  4. Companies incorporated by special legislation;

As a result Norway's 500 PLCs have had to recruit about 1,000 female directors. It has been reported that many have found it difficult to find experienced candidates.

Some of the most qualified candidates sit on 25 to 35 boards, which has led to investors being concerned about "overboarding" namely too many positions, within a portfolio of non-executive appointments which, it is suggested, may compromise directors' attendance, adequate preparation for board meetings and overall performance.

In response to the increased demand for female leadership, the Confederation of Norwegian Enterprise has launched a program, called Female Future, and has trained about 600 women in preparation for board and leadership positions.

This approach is unlikely to be adopted in the UK any time soon.

Sex Discrimination – Direct And Indirect Discrimination

Direct discrimination arises where, on the grounds of sex, an employer treats an employee less favourably than he treats or would treat another employee.

Indirect discrimination arises where an employer applies to a woman a provision, criterion or practice, which he applies or would apply to a man but:

  1. which puts or would put women at a particular disadvantage when compared with men,
  2. puts the complainant at that disadvantage, and
  3. which the employer cannot show to be a proportionate means of achieving a legitimate aim.

Therefore, the existence of the glass ceiling could be invoked as relevant to both types of claim.

For example, if a female employee is not promoted in a competitive exercise and a male colleague is promoted instead, the burden of proof operates as follows, in relation to an assertion of direct discrimination:

  1. the Claimant has to establish a prima facie case of discrimination,
  2. it is then for the employer to prove on the balance of probabilities that the treatment was not on the grounds of sex.

The Claimant is likely to request data concerning the number of instances where female employees, in a comparable position, have been promoted. At the same time, requests regarding the gender breakdown of the workforce should be expected. The latter being used to suggest that there is a gender bias against female promotion. Although it may not be directly relevant, a SDA Questionnaire is also likely to probe the prevalence of flexible working arrangements, particularly for working mothers, within the organisation. At each stage in the Tribunal, a Claimant is likely to point to the "evidence" of "Sex and Power 2008" as a backdrop to the statistics applicable to the given employer.

Clearly, a Tribunal is not able to conclude, solely on the basis of the "Sex and Power 2008" report that a form of "glass ceiling" applies at a given employer. However, if the statistics for a given employer are less attractive then one would ideally want, it can be seen that the Tribunal will be invited to conclude that the backdrop of an apparent "glass ceiling" across the UK workforce is the explanation for the given employer too.

Additional Factors In The Public Sector In The UK

In addition to disability and race equality duties, public authorities are subject to a gender equality duty (under S76A Sex Discrimination Act 1975 (SDA)) (a GED):

"A public authority shall in carrying out its functions have due regard to the need –

  1. To eliminate unlawful discrimination and harassment, and
  2. To promote equality of opportunity between men and women."

There is a related obligation to prepare a gender equality scheme (GES); in doing so it should consult its employees, service users and others (including trade unions) who appear to it to have an interest in the way it carries out its functions. Furthermore, the GES must set out the overall objectives which it has identified as being necessary to meet the GED.

It is expressly required to consider the need for objectives that address "the causes of any differences between the pay of men and women that are related to their sex."

The GES must also set out:

  1. How it will gather information on the effect of its policies and practices on men and women and in particular

    • the extent to which they promote equality between its male and female staff,
    • the extent to which the services it provides and the functions it performs take account of the needs of men and women.

  2. How the authority will assess the impact of its policies and practices, or the likely impact of its proposed policies and practices, on equality between men and women.

(The origin of the equality duties, to a certain degree, can be sourced back to the concern expressed in the Stephen Lawrence Inquiry in 1999 which identified, in relation to race issues, the concept of "institutional discrimination".

It is important to note that "institutional discrimination" is not a legal term of art. It has also been suggested (by Robin Allen Q.C.) that it is better "to speak of "mainstreaming" considerations of discrimination, equality of opportunity and good relations into the exercise of all the functions of relevant public authorities.")

It will readily be appreciated that Sex Discrimination Questionnaires submitted in cases alleging sex discrimination against public authorities have an almost ready made list of questions for Claimants to use in relation to the GED and GES.

Disclosure exercises in public sector discrimination litigation will, perhaps inevitably, become longer and more time-consuming and costly in order for Claimants to seek to point to alleged failures in respect of the GED and GES obligations to support a contention that the explanation for their alleged less favourable treatment is, by extrapolation, gender based . However a culture of individual settlement may not resolve matters more widely and may, indirectly, encourage more claims: truly, a rock and a hard place.

Those familiar with defending discrimination claims will be tempted to think of the old adage of "lies, damned lies and statistics". That said, the figures contained in "Sex and Power 2008" do cause pause for thought. It is tempting to suggest that the report is capturing merely the tail-end of outdated and outmoded approaches. However, on 22 September 2008 the BBC has reported a US study in the Journal of Applied Psychology which suggests that "men who grow up thinking women should stay at home....could end up well ahead in the salary stakes". The study tracked 12,700 men and women in the US over 1979-2006; and a (disappointing) finding was that the less "modern-thinking" men out-earned their more "modern-thinking" counterparts by £4,700, on average annually.

Two potential questions/theories for these observations were:

  • "more traditional-minded men are interested in power"
  • "employers are more likely to promote men who are the sole earner in preference to those who are not, supporting the sole breadwinner".

Neither being an edifying or attractive approach. This contrasts starkly, though, with the propositions in "Talent not Tokenism".

The Equality White Paper – "Framework For A Fairer Future"

There are a variety of potential improvements and developments planned to make the network of UK discrimination legislation more consistent and effective. However, it is clear from July's Equality White Paper that there will have to be much more detail in due course, in order to achieve the aims of "simplification" and "strengthening" the law on discrimination. Although the government has dropped the idea of mandatory equal pay audits for the private sector, there will be greater pressure on private sector entities who contract with all forms of Government to increase their emphasis on equality matters via the procurement regime.

Conclusions

There are significant advantages in terms both of preventing claims and defending claims if an employer demonstrably and publicly:

  1. Champions diversity as a priority from the top down – clear, strong statements at Board level are an important starting point, but need to be followed through.
  2. Monitors relevant statistics such as the gender breakdown of seniority within the organisation; successful and unsuccessful candidates for promotion – and tests/investigates the underlying reasons.
  3. Articulates, through clear policies and regular training at all managerial levels, both the advantages of diversity to the business and the types of behaviours that will be and will not be tolerated.
  4. Is seen to be supportive of flexible working arrangements where they can be accommodated.

This is an area where cross-fertilisation of ideas and practices in the private and public sectors may be helpful. Whilst the compulsory approach seen in Norway is unlikely to be replicated in the UK, the potential cost in financial and reputational terms of discrimination claims is likely to prove increasingly important as a catalyst to drive diversity initiatives. Credit-crunch pressures notwithstanding, diversity issues are increasingly likely to be seen as mainstream business expenditure with in-house legal and HR teams front and centre in helping to achieve successful outcomes.

Robert Davies, Partner
Dundas & Wilson LLP
robert.davies@dundas-wilson.com

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.