Inn the Field of Play - May 2017: Diversity and Inclusion In Sport

The Code for Sports Governance:  board representation

Sport England and UK Sport published its new Code for Sports Governance on 31 October 2016.  

Within the key requirements of the Code for tier 3 organisations (i.e. those in receipt of more than £1 million of funding), there is a requirement to:

• target a minimum of 30% female board representation;
• demonstrate publicly a commitment to gender parity and greater diversity across all of the characteristics protected by the Equality Act 2010; and
• publish information that relates to the steps taken to foster diversity within both leadership and decision making (to include an annual update against its diversity action plan)[1].

The 30% target created some headlines when the Code was released.  For example, Lord Ouseley, the Chairman of Kick it Out, claimed that it was prioritising women over other under-represented groups.  Similar comments were also made by the Gay Football Supporters' Network.  

Sport England and UK Sport were, however, reported to have had long discussions about whether to impose a similar target within the Code for other under-represented groups, but were said to have felt that, following on from consultation with relevant stakeholders, such targets would not currently be practical.  This is why the Code instead refers to a more general push to show annual progress against wider diversity-related measures.

Given the 30% target identified in the Code, it is worth considering the relevant legal position should an organisation want to specifically target women when recruiting to any vacancy.  

If a position on an organisation's board is unpaid it will fall outside of the office holder provisions at section 49 of the Equality Act 2010 (the Act), and technically a governing body could seek to advertise for a position using gender as a criterion.  However, most organisations are unlikely to want to want to take quite so blunt an approach, particularly where other groups are also under-represented on their board.

If the position is paid, section 49 of the Act would then apply and any decision to recruit with gender as a criterion would amount to positive discrimination and be unlawful.  In those circumstances, an organisation would instead need to look at what lesser steps could be taken by way of positive action, which is potentially lawful, to encourage female candidates to apply.  

In terms of a more general step to take towards positive change (with the wider chapter in the Yearbook mentioning others), section 158 of the Act allows organisations to enable or encourage persons with a particularly protected characteristic to participate in an activity, where participation in that activity by persons with that protected characteristic is, for example, disproportionately low.  For participation to be "disproportionately low", it must be low compared with the local population and/or the level of participation that could be reasonably expected.

The question then is what steps would be a proportionate means of encouraging participation.  Chapter 12 of the Employment Statutory Code of Practice provides the following examples keep relevant in the context of increasing representation on boards:

1. setting objectives for increasing participation of the targeted group;
2. aiming advertising at specific under-represented groups and making statements to welcome applications from under-represented groups;
3. providing bursaries to obtain relevant qualifications for members of the group whose participation in a particular area is disproportionately low;
4. outreaching work to raise awareness;
5. reserving places on training courses for those with the relevant protected characteristic;
6. targeting networking opportunities; and
7. exploiting mentoring and/or shadowing opportunities.

It is therefore worth organisations to base any positive action around the sort of initiatives set out above.

Report on Ethnic Minorities and Coaching in Elite Level Football in England

In November 2016, the Sports People's Think Tank and the Fare Network published an update report, as a follow up on its 2014 report entitled "Ethnic Minorities and coaching in elite level football in England: A call to action".  

The 2016 report contains updated statistics in relation to Black, Asian and Minority Ethnic (BAME) representation in coaching positions within the 92 professional league clubs and, somewhat depressingly, they are very similar to the 2014 statistics.  A comparison is set out in the table below:

The report also then contains statistics in relation to BAME representation at each stage of the core education pathway.

Whilst the statistics in the report make for somewhat of a depressing read, the report does highlight some of the positive steps being taken, including:

• the English Football League (EFL) introducing its recruitment code, which includes mandatory requirements to shortlist at least one BAME candidate for academy positions and a voluntary scheme for ten clubs providing for the same in relation to first team managerial/coaching positions[3];
• the Premier League using their Elite Coaching and Apprenticeship Scheme to encourage greater diversity, by including guaranteed places for six BAME and six female coaches per intake; and
• the FA investing more than £1.4 million over the next five seasons in its bursary scheme to get more coaches from BAME backgrounds into the licensed coaching system at elite level.

However, the authorities are also criticised in the report[4] over a lack of data sharing, and failing to work more closely together to, for example, identify job opportunities for those BAME coaches in the elite coaching pipeline.  They are also criticised for not adopting recommendations for action from the 2014 report[5], including not implementing an overall target of 20% of coaches in professional football to be from BAME backgrounds by 2020.

The question that follows from all of the above is what further steps the authorities and clubs should be taking to address the issue and again where the line is in terms of what amounts to lawful positive action and what strays into unlawful positive discrimination.  Even if the Rooney Rule does stray the wrong side of the line, there will be many who feel that the adoption of a similar model is a risk worth taking.  

If you require further information on anything covered in this briefing please contact David Hunt([email protected]) or your usual contact at the firm on 020 3375 7000.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, May 2017