A recent press release from the Equal Opportunities Commission (the “EOC”) has suggested that 6,000 women are “missing” from the 33,000 “top jobs” in the UK. In other words, another 6,000 women would need to take up these senior positions in order for the gap between men and women in senior roles to be closed.  Women account for only 10% of directors of FTSE 100 companies, and 20% of Parliament (apparently placing the UK behind countries such as Rwanda, Afghanistan and Iraq in terms of female representation in Parliament).  Based on these figures, it would seem that the glass ceiling is still firmly in place. 

However, what this EOC report does not reveal is why women are not filling these positions.  One argument is that they are not being promoted because of discrimination by their male colleagues: perhaps based on an assumption that they are unable to do the job or because of an expectation that they will have time off to have a family.  Another possibility is that these positions have not been filled by women because more and more women are opting for a better work / life balance, enabling them to spend more time with their families.  Some of the senior roles which are the subject of the EOC’s report may not be compatible with part-time work.  Could it therefore be the case that these women who are “missing” from the top jobs have actually decided to pursue a different career path, or to take up positions which are not required to be full time? 

Men have been slower than women to take up the right to apply to work flexibly, with the vast majority of requests coming from women. This is unsurprising since statistically it is women who have primary responsibility for caring for children under six years old.  With effect from 6 April 2007 the law will extend the right to request flexible working to carers of adults.  Since statistically more women than men are responsible for caring for adults, this new right may be unlikely to result in substantially more men making requests to work flexibly.  What may be more interesting is whether the new rights for fathers to have up to 26 weeks’ paid Additional Paternity Leave under the Work and Families Act 2006 will have any impact on the ratio of men and women in the workplace.  Perhaps more men will decide to opt for jobs which allow them a better work/life balance, after spending a long period of time off work on paternity leave.

Another recent survey, in the Sunday Times, suggests that there may be a third reason why women are not promoted : female bosses.  According to the study reported in the Sunday Times, the “queen bee” syndrome whereby women do not promote more junior women due to female rivalry in the workplace, means that women bosses are “significantly more likely than men to discriminate against female employees”.  If that is true and women are preventing women from advancing their careers, that will be a difficult cycle to break since the promotion of a woman to a senior position could lead to a slow down in the promotion of other women.  But, if this happens, would it be unlawful?

The answer is that it could be.  The usual concept of sex discrimination involves a man discriminating against a woman on the grounds of her sex (or, on occasion, a woman discriminating against a man).  However, it is plainly possible for a woman to discriminate against a woman on the grounds of her sex.  If a female boss fails to promote or recruit a talented woman solely because the female boss wants to be the “queen bee” and does not want other senior women in the organisation, that is likely to give rise to a claim for sex discrimination.

The focus under the Sex Discrimination legislation is on the sex of the victim and the effect which the treatment has on that person, rather than on the sex of the perpetrator.  If a female boss discriminates against a female employee this would therefore be contrary to the sex discrimination legislation although it could in practice be difficult for the junior employee to demonstrate that a male colleague would have been treated more favourably. 

When Helen Green won her claim for £800,000 damages against Deutsche Bank, it was as a result of treatment she had received from female colleagues.  Although the case was not brought on the basis of sex discrimination, in principle a sex discrimination claim could be brought successfully against a female boss.  Equally, a claim for sexual harassment could be brought by a woman against a female boss, although this would be quite unusual.

More likely perhaps is that an office “queen bee” could find herself on the receiving end of a claim for bullying or harassment contrary to the Protection from Harassment Act.  This claim does not need to be on the grounds of the complainant’s sex.  There is no need to show a discrimination ground, or that psychiatric injury was reasonably foreseeable (which is the test for a personal injury claim).  It is enough that distress or anxiety was caused, and it is no defence for the employer to say that it took reasonable steps to try to avoid the harassment.

Another possibility is that a female boss who bullies or harasses a female colleague could be breaching the duty of trust and confidence which every employer owes every employee.  This could give rise to a claim for constructive dismissal, and unfair constructive dismissal if the employee has over one year’s service.

Recently Nancy Pelosi of California became the first woman speaker of the US House and referred to the fact that “after 200 years, we have broken the marble ceiling” (a marble ceiling, presumably being harder to break through than a glass one).  Whether or not there is a glass (or marble) ceiling in a particular organisation, employers should be aware of claims for sex discrimination or harassment which can arise outside of the ‘usual’ claim brought by a female employee against a male colleague.  Complaints and grievances should be taken seriously and investigated thoroughly, even if at first glance it does not appear to be a case of discrimination.

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