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The law, standing accused

17 April 17

Has the legal profession failed working women? Though unsuccessful at the recent Women in Law Scotland debate, there are arguments to the contrary – but also action points for making a difference

by Val Dougan

Perhaps I was the only one at the recent WiLS (Women in Law Scotland) debate to be surprised at how many people voted in favour of the motion: This House Believes the Legal Profession has failed Working Women. I should admit that this surprise was probably tinged with some personal reflection (and guilt?!) after being part of the losing team. And of course our opponents put forward a very convincing argument. Despite our best efforts to persuade the predominantly female audience that the Scottish legal profession should be awarded a pass rather than a fail, our arguments failed to convince.

The fact that so many female lawyers believe their own profession has failed them should give us all cause for concern, and certainly begs the question, why? Because, when you look at the figures in law and compare them with our peers in the business community, we are certainly no worse than our corporate colleagues. There is also plenty to celebrate in terms of achievements, and perhaps it is a matter of perspective. Can the profession not be defined by the success of the many capable women who have worked hard and pushed through, and continue to do so, rather than dwell on areas where we could do better?

Law on a par

My central argument was that the challenges that exist in relation to working women in the legal profession are not in any way exclusive or unique to us. There is no magic bullet for improving equality.

My colleagues and I, arguing against the motion, were open to the specific issues that do affect the legal profession, conceding that the main challenge is progression, more specifically the lower level of female partners and a higher than average gender pay gap which sits at 42%. And as anyone who has started to grapple with gender pay knows, the two issues are directly related. A gender pay gap is an average figure which takes into account the distribution and the structure of the workforce, in addition to the levels of pay.

The legal profession has fewer women at the top and a significant number in the early stages of their career, and the combination of both factors is the reason why there is a higher than average pay gap. While just over half the profession are women, in the last five years 63% of new members entering the profession are female, and the trend looks set to continue with females accounting for 70% of law students.

To put this in context, the Scottish legal profession’s pay gap is also on a par with the financial services sector and other professions such as dentists – both professions have a 39% gap. What was disconcerting for me, when researching the figures in my quest for positive information, was that the pay gap of average female earnings has actually increased – the data in the 2006 Profile of the Profession study indicates that the pay gap then was 38%, although what was also noticeable is the fact that the term “gender pay gap” is not mentioned once in that report despite detailed discussions about earning levels and equal pay.

In relation to leadership, 28% of partners in Scottish firms are women. This is actually better than the corporate world, where according to 2015 figures in the comprehensive and excellent Womenomics report, 25% of directors in Scottish based FTSE 100 companies are women. And it’s certainly not far off the 30% mark which has been the figure used in many voluntary business initiatives. It is worth explaining that the 30% figure is not simply some arbitrary target. Research has uncovered that this figure is seen as the tipping point for meaningful change in the behaviour and culture of an organisation. The same research has said that having “a greater number of women in management and senior leadership positions was tied with better performing organisations”.

Direction of travel

The second thread of my failed argument related to timing: that it was premature to say that we had failed, when the legal profession as a whole has yet to tackle this issue seriously. It is only relatively recently (in the last five years or so) that there has been a general awareness that the number of women in leadership roles at board or executive level should be measured, never mind a cause for concern. I tried to suggest that we were on the cusp of change and the direction of travel was the right direction. The Davies Report into women on boards was launched in 2011; David Cameron’s announcement that he planned to legislate to compel employers to publish their pay gap was in July 2015 and will result in the first data gathering exercise in April 2017.

Closer to home, it was only last year that the Law Society of Scotland launched its campaign, Let’s Talk Progression; and at an international level, in January of this year the IBA launched a global investigation into the reasons why women leave law firms. The problem with progression in law is a global issue, as the IBA acknowledges on its website: “Typically, women are graduating with law degrees and entering legal careers at the same or higher rates than men; however, significantly fewer women continue into senior positions.”

I do genuinely believe that there is now a greater awareness that proactive measures are required to improve the number of women in senior roles. Whether pay gap reporting will lead to wider transparency and action on diversity is the great unknown. Those organisations that do go further than the statutory reporting requirements may for the first time have the evidence necessary to inform and identify where structural barriers lie. Analysing pay at different levels, or promotion rates, by looking at the length of time it takes men in contrast to women to move from senior associate to partnership, may start to reframe the issue, and prompt further questions to be asked.

Get men involved

Writing as a member of the Equality & Diversity Committee of the Law Society of Scotland, I am hopeful that events like the WiLS debate, and the introduction of the gender pay gap reporting regime, will prompt a wider debate about how the profession tackles progression. The Society is trying to help firms by providing 10 voluntary equality standards for improving equality within the workplace. This includes steps such as reviewing career progression policies for transparency, and removing barriers; training on handling requests for flexible working, and unconscious bias; and a publicly available equality strategy which is overseen by a named equality lead.

Having a person at a senior level who is tasked with the responsibility of driving diversity is undoubtedly the first step. Similar conclusions about the need for senior accountability were made by Jayne Anne Gadhia in her report on harnessing female talent in the financial services sector. In fact that report said that the diversity lead should preferably be a man, to avoid the issue being siloed. Getting men on board with the economic case for diversity is essential to ensure that change becomes part of the organisational culture and long term strategy. As a profession, how long do we want to wait before the same motion is argued and voters overwhelmingly reject the view that we have failed working women? 

Val Dougan is a professional support lawyer with CMS, and a member of the Law Society of Scotland's Equality & Diversity Committee

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