More Women Please in the Boardroom and in Politics

In our society, women constitute just over 50% of the population.  Taking this figure into account, why are there not more women seen in politics?  Perhaps, this is the wrong question to ask - there are lots of women active in politics - just not represented in our Parliaments or in our Local Government. This then changes the question, why are there not more women in Parliament or Local Government?

Background

Many readers will be familiar with the sociological concept of patriarchy.  This is where society, in almost all aspects, is dominated or controlled by men.  This can been seen at a number of levels; men still dominate the Board Rooms of large corporations, men are heavily featured in Parliament, the Judiciary, Senior Government Roles and so on.  Women still earn on average less than men in terms of their take home pay and certain Professions, at a senior level, remain dominated by men.

Against this background, we contrast the following:

Women, on average, are performing better in education than men.  Similarly, the majority of entrants to the legal profession, at the junior level, are also women.  Women are also more likely than men to take part in, or organise campaigns at a local level for example, to stop the closure of a local school or hospital.  Women are less likely than men to take risks, for example by driving dangerously, or in making risky financial decisions.  Women also live longer than men and are generally better at taking care of their own health and wellbeing than men.

If women are more responsible, are better educated, are more than able to take part in politics, then why are there not more women in Parliament or in Local Government?

No Easy Answer

Of course, it it easy to answer this question from the point of view of discrimination, or blocking from the boardroom, perhaps even societal expectations and expected gendered roles.  However, it is actually more complex than that.

Access to Power

If we first turn to the boardroom.  This example also translates into politics.  In order to get there, you need access.  Unfortunately, it is not as simple as simply walking through the door and taking your seat at the table.  If women are not given the same access to the opportunities that men have, certainly at senior level, then women will always hit the "glass ceiling".  This is an analogy which continues to be relevant.  Women are granted access to a certain level and thereafter, have to stare through at the men sitting above them.

If the boardroom remains controlled by men, then why would men want to change that?  If the current model of working suits, why change it.

Men are not all the same

First of all, it is important to note that not all men subscribe to the concept of control or exclusion.  However, it takes a brave soul to instigate change.  Usually, a carrot and stick approach is necessary here.  For example, a change in the law.  This in itself, is not enough.  The equal pay act and the sex discrimination act all failed to achieved either board room parity or parity in pay with men.  Even to this day, women are fighting it out in employment tribunals across the UK to achieve the same rights as their male counterparts.

The powers that be, whether in the board room or in politics, inevitably still favour men.  This may not be direct discrimination against women, but usually indirect, where a policy, criteria or practice, applying both to men and women has a disproportionate effect on women.

We know that a majority of women remain the primary carers for children, for older relatives and also  work as a majority in certain work roles e.g., cleaning staff, catering, social work and teaching.  These responsibilities do not lend well to taking part in the boardroom, or seeking selection as a candidate for a political party (the precursor to seeking election as a candidate).

Indirect Discrimination in the Boardroom

If you are the primary carer for your disabled son, would you be able to drop those responsibilities at a moments notice, to enter into an extended board meeting?  The answer, in the majority of cases, is likely to be no.

In order to do that, you would need help and support.  First of all, you would need someone to share your caregiving responsibilities, board meeting would have to be arranged at family friendly times, you would need the support of your colleagues to take time off for inevitable appointments with the doctor and so on.  If you are an executive, sitting on a governing board, how likely are your colleagues to be that supportive - particularly if they are all, or by majority, men?

Indirect Discrimination in Politics

In order to get selected by a political party, you have to be seen to be active in that political party.  This means giving up personal time to go out and campaign, to deliver leaflets, attend conferences and events, meetings and so on.  If you are looking after your children, whilst your partner is at work, how easy is that going to be?

Similarly, if you are motivated enough and can find that spare time to actually get selected, what happens when you notice that Parliament sits late into the night, that there are no creche facilities, no extra allowances are provided for you and your family to employ a nanny or to permit your partner and children to re-locate to your new Parliamentary office?

The next obstacle involves persuading your colleagues that the rules should be changed.  However, bear in mind that the expenses scandal put any challenge to the current rules - to make them more family friendly - unlikely.

Solutions to this problem

1.  Identifying the institutional barriers

This seems easy to achieve.  However, as mentioned elsewhere, it is not as simple as that.  First of all, it is important to consult with women who have ambitions to join the board or enter politics.  We need to know what their experiences are, where their ambitions lay and what steps could be taken in order to help them achive their full potential.  

It is also important not just to look at women, but also look at men's experiences too.  Although, we have identified that a majority of women retain priminary responsibility as a care giver, a growing number of men, as well as women, now also perform this role.  In some cases, the responsibilities are shared between both partners in a family.  

It is also important to identify what systems currently operate in terms of recruitment - whether to elected office or the boardroom - and to perform an equality impact assesment.  This will help identify problems, for example with child care.  It will not identify all of the problems, but it will identify some.  

When you are aware of what the issues are or where the inequality in policies, practices or criteria lay, you can begine to apply some fixes.  If a particular policy sets board meetings at any time, then change it to accomodate family needs.  If you cannot take part in a selection meeting because you are looking after the children, ask for additional support from the political party to enable your participation.

2.  Take action

It is not enough to just look at the problems and say that there is an issue.  Talk is cheap.  What is important is that there is a measure of follow through.  It is not enough to say we have changed out recrutiment policy, or we now hold our meetings during the day, you have to stick with it and continue to improve and learn from the experiences generated along the way.  

There is no point encouraging women to come forward if you are not going to committ to providing the necessary support, education, training and rule changes that are necessary to facilitiate any change.  There has to be a full blown cultural change which tackles the institutionalism preventing many women coming forward.  

3.  All Women Shortlists

This is a form of direct affirmative action.  It is not without its merits and was sucessful in increasing the representation of women in both the Scottish Parliament and Westminster under the then Labour Governments.  

However, this is an extreme step.  It is a matter of debate whether in the long term a policy of all women shortlists will solve the problem.  

In the Labour Party, the decision was taken to use only all women shortlists.  However, following a decade of improved representation of women in both Parliaments, the numbers began to return to earlier levels.  Additionally, the Westminster Parliament took the retrograde step of reverting back to late night sittings of Parliament and the right to pay for your spouse to come to Parliament with you was withdrawn.  In essence, Parliament became the dominion of men once again.  Additionally, for the few women who did remain, they often had gorwn up families or came from families without children.  

If you are woman, or a man for that matter, with a family, how likely are you going to want to seek selection as a candidate if you know the working environment will not be family friendly?  This appears to the crux of the matter.  If the institution you are seeking election to is not family friendly, then what is the point of an all womens shortlist?  

Additionally, if the very party you are seeking to represent, is unwilling to move to change the rules that govern the system, or support you and your family inside the system, will you come forward to seek election?

An all womens shortlist will only work sucessfully if it allows all women - those with caring responsibilities and those without - to come forward as equals.  It will also only work where the institutional barriers have been broken to facilitiate full participation and are not tokenistic.  

At the moment, the reintroduction of an all womens shortlist system into politics or the board room would only act in the short term.  In the long term, like its precursor, it will fail.  

Moving Forward

The arguments reheresed in this article are not new and some may question the wisdom of writing about this issue.  However, it is important to remember that our democracy, whether local or national is meant to be representative.  Women constitute over 50% of the population, yet are routinely excluded from our political system.

Whether you believe in all women shortlists or not, society has to move out of an institutional mould and allow more women that coveted place at the top table. 

Fees for Employment Tribunals - An Employer's Charter to Dismiss, Discriminate and Subject their Staff to Detriment

The Enterprise and Regulatory Reform Bill received Royal Assent on the 25th of April.

One of the provisions, not commented on widely, is the power for Ministers to prescribe fees for the use of the Employment Tribunal system.

This article explores the implications of such a move and highlights a popular concern; that the law, albeit indirectly, now grants employers permission to dismiss, discriminate and subject employees to detriment without fear of redress.

Background

In bringing forward proposals, the UK Government argued that it was necessary for claimants to share the burden of Employment Tribunal running costs, in much the same way that civil court litigants share the cost of claims in the court system.

The Government has already made cuts to the English legal aid system and the Scottish Government is following suit here. Similarly, all Government departments across the board have been asked to find cost savings.

Taking the general background into account, the question arises - why should the Employment Tribunal system be immune?

The Employment Tribunal System

First of all, it is important to remember that the Employment Tribunal system was created as a distinct mechanism for resolving work place disputes. This was done, almost exclusively, to keep employment related litigation out of the court system.

Another important aspect to recall is the very specialist nature of employment law. This branch of law, unlike its cousins in criminal or family, is largely the preserve of lay practitioners - whether in the form of Human Resources personnel or within the gambit of Trade Union officials.

Employment lawyers, whether Solicitors or Advocates (Barristers in England, Wales and Northern Ireland) are in relative terms latter day participants in this particular field.

The subject itself is also extremely practical. This is why, amongst other things, the constitution of an Employment Tribunal was set up to involve 3 judges; 2 of which were lay persons representing both employer and employee perspectives. The other judge, being the Chairman of the Tribunal, being legally qualified - although not necessarily a lawyer.

Procedure in the Employment Tribunal was to be kept simple and straight forward in order to properly reflect the character of the litigation coming forward.

Employment Tribunal - Bogged down in Procedure

Unfortunately, as legislation developed and more lawyers became involved in the system, procedure and practice evolved - or devolved - depending on your point of view.

There came a point where a typical Tribunal hearing would not actually get into the substantive of any claim before first trawling through procedural arguments such as time bars, qualification periods for certain claims, correctly completed forms with relevant date stamps and so on.

In my view, it was the over emphasis on procedure, that lead to increased costs in using the system.

Indeed, many of the procedural arguments continue to be used as a-typical defences by employer respondents seeking to avoid any litigation on the substantive of a claim.

The Government has placed over emphasis here in blaming claimants for raising claims, rather than on respondents for failing to address the issues that gave rise to the claim initially.

This is why we now face fees from September.

A Free system - Protecting Employees

In effect, one of the barriers preventing an employer from unfairly dismissing an employee, or from discriminating, was the threat of an Employment Tribunal claim.

Employees, who have a number of rights and responsibilities, are protected in law from unfair dismissal, from discrimination and also from detriment for seeking to avail themselves of their employment rights.

It will now cost £160 to raise a claim and an additional £320 to take the claim to a full hearing.

If you are seeking to claim for unlawful deduction from wages, non payment of holiday pay or for breach of contract, it could be cost prohibitive to raise a claim. This means that employers will be able to simply get away with it.

What is the point of having legal rights if they are rendered unenforceable?

Who will pay?

Certain high value claims, such as multiple claims for equal pay for instance, are unlikely to be affected by the introduction of fees. However, as some stage, someone will have to pick up the fee; who will pay this? The Trade Union? The Claimant?

If you are already in low paid work, it is unlikely that you will be in a position to pay the proposed fees. Similarly, if you are in part time work, it is also likely to be cost prohibitive to raise an Employment Tribunal claim.

Fees Discriminate

It is worth pointing out that women and disabled people are often in low paid work and part time work. On this basis, it could be said that the proposed measures indirectly discriminate; whether or grounds of sex, disability or some other protected characteristic.

This is yet another reason why the proposed fee structure is wrong.

Alternative Dispute Resolution

The Government is seeking to encourage would be litigants to resolve disputes through compulsory mediation via ACAS. This approach is not without merit, however is not very pragmatic.

ACAS has been empowered to act as a mediator for some time. Although one party may be willing to settle, any respondent, represented vicariously through their insurance company, always requires the litigation to proceed, at least to an early stage, before agreeing to settle.

In the absence on a free to use system, there will no longer be an incentive for respondents to settle, even with the intervention of ACAS. The employers will simply stand back, go through the motions and know that no claim will proceed on grounds of cost.

Fees in the Courts

One of the arguments used to justify the fee system is that the Employment Tribunal system should now be looked on as as another court, rather than as a Tribunal.

However, in Scotland at least, it does not cost £160 to raise an ordinary cause action (next level above small claims). Similarly, it does not cost £320 to proceed to a Proof (hearing). There are various fees associated with serving documents through sheriff officers etc.

Future Concerns

My concern here is that the very specialist nature of the Employment Tribunal system is eroding.

If it is more cost effective to litigate in the civil courts, then what is the point of having a separate and distinct system to reflect the very practical nature of employment law?

More specifically, is it now fair to expect the local Sheriff Court (Crown / County in England) already struggling under the burden of multiple small claims, criminal and family actions to now take on the mantel of employment law?

There are many challenges ahead for employment law practitioners in future.

Only time will tell, post September, whether or not the new fee bases system, survives the test of judicial intervention.

All things being equal, it looks as though employers have just been granted a Charter to dismiss, discriminate and subject their staff to detriment without fear of redress.