The national picture of college governing boards is overwhelmingly one of white, middle-aged men, the results of an Association of Colleges survey revealed last month. Barbara Cohen looks at the legal issues.

The national picture of college governing boards is overwhelmingly one of white, middle-aged men, the results of an Association of Colleges survey revealed last month. Barbara Cohen looks at the legal issues.

hat middle-aged white men dominate the governing bodies of colleges in England seems fairly clear, not least from the results of the Association of Colleges survey and also the Review of FE and Sixth Form College Governors published in July 2013 by the Department for Business, Innovation and Skills.

It is likely that membership of boards will vary from college to college. It is also likely that most colleges will not be surprised by these findings, even though they have been “trying” to recruit more diverse boards.

Find out why there are too few women and too few people of different ethnicities on a governing board

What is a surprise is that the current discussion omits reference to the public sector equality duty (the PSED) contained in the Equality Act 2010, which applies to the governing boards of all colleges in Great Britain.

What the PSED requires is that each governing board, in carrying out its functions, has due regard to the need to eliminate discrimination and to the need to advance equality of opportunity and foster good relations.

The Act explains that to have due regard to the need to advance equality of opportunity includes having due regard to the need to remove or minimise disadvantages suffered by members of particular groups and to take steps to meet different needs. It also requires the encouragement of participation by members of groups whose participation is disproportionately low.

The PSED means that a board must give proportionate consideration to equality in all that it does, including its appointment of governors. To fail to do so could result in challenge to the legality of a decision or a policy. Specifically, to comply with this legal duty, a college that is aware of disproportionately low participation on its board of governors by women, by younger people and by black, Asian and other ethnic minorities can no longer do nothing.

What a college must not do is immediately jump to the introduction of quotas. Imposing quotas is ill-advised for two reasons. The first is that to do so may very well amount to direct discrimination which is unlawful. The second is that imposing a sex or race quota will not guarantee that more female, or more ethnic minority, governors will have the “necessary skills and experience” which a particular college, serving a particular community, needs.

The essential first step is to find out why there are too few women and too few people of different ethnicities on a governing board. Where are the barriers? Are they external, for example a lack of information and local people, and are community groups unfamiliar with the work of the college and its governors, individuals’ lack of confidence? Are the barriers also internal, for example how does the college present itself to the community? What is the public face of the governors? Are the views of current board members when selecting new governors unduly informed by their own gender, race and age?

Once the causes of disproportionality have been identified a college can consider how the positive action provisions in the Equality Act 2010 could enable it to achieve a more diverse board.

Under the Equality Act it is lawful for an organisation to do anything which is a proportionate way of enabling or encouraging participation in an activity by members of a group if the organisation thinks that participation by that group is disproportionately low.

Quotas are rarely proportionate. Instead, a college could undertake action which is targeted at overcoming the external or internal barriers it has identified. This could include outreach to local organisations, open days for women only or for particular minority community groups, targeted support during governor recruitment. Colleges may also decide to provide equal opportunities training for governors.

To achieve a more diverse board of governors cannot be mere ‘window-dressing’. Greater diversity at the top of an organisation, incorporating a wider range of experiences and skills, not only assists it to comply with the PSED, but more fundamentally improves the quality of its decision-making, especially when determining strategic priorities and the allocation of scarce resources.

Barbara Cohen, chair,
Discrimination Law Association