Steps forward

MOIRA MACMILLAN and DR NICK McKERRELL, researchers at Glasgow Caledonian University who analysed the survey responses, report on the principal findings

When the Equal Opportunities Commission and the Law Society of Scotland commissioned Glasgow Caledonian University to research the issue of women in the legal profession it was an exciting although daunting prospect. It was clear that a project of this scale was unprecedented in Scotland so far as the legal profession is concerned.

Some previous studies into aspects of the Scottish legal profession had been carried out but these were on a smaller scale. Although there was a worrying perception of the lack of women in senior positions in the legal profession, no recent in-depth examination of this situation had been undertaken.

It was felt by the research team that the most effective research strategy would comprise a questionnaire covering the entire Law Society of Scotland membership.

The questionnaire was not conjured out of fresh air but sought to reflect key themes that had been identified in research, both here and in other jurisdictions, into the position of female lawyers.

As well as the issue of career progression other themes that were seen as prevalent were the possibility of a gender pay gap, work-life balance issues and whether there existed a macho ethos within the profession.

In any event the response was very high for this type of work with 2,300 solicitors returning questionnaires. As well as the results giving a statistical picture of these issues, ample space was given for participants to express their own views on the issues. It is fair to say that this was taken full advantage of!

Key findings of the report included:

Profile

More women than men responded – a breakdown of 60:40. All sectors and levels were represented. More than half of the women who responded had been a solicitor for less than 10 years, whereas amongst the men half had been admitted for more than 21 years. This is reflective of the profession which more and more women have chosen to enter in recent years.

Work-life balance

A clear majority of all genders and sectors declared they were maintaining a good work-life balance. However around half believed their organisation equated long hours with commitment – this was even higher in private practice.

On average 42.5 hours per week were worked, although again there were differences according to gender and between sectors.

A significant issue arose regarding part-time working. A large minority of women (almost 1 in 4) said they worked part-time – although there was no clear definition of what this meant. In sharp contrast, only around 5% of men had this working arrangement.

In terms of caring for dependants, which can have a major impact on working life, more than half of the respondents had dependants. However, there were differences between sectors and in relation to the position held within firms. For example, at equity partner level three-quarters of men had dependants compared to about half of the women. At all other levels a greater proportion of women than men had dependants.

When being primary caregiver is added to domestic responsibilities, these burdens fell most frequently on female shoulders. In terms of how the profession deals with this, an examination of the availability of family friendly policies was undertaken – these were more common in sectors other than private practice. The takeup of these policies had a gender dimension, with a high proportion of those utilising policies like flexi-time, part time working and homeworking being women.

Nature of the work

The issue of whether women or men dominated in particular areas of legal work was examined. There was largely unanimity on whether men or women solicitors performed better in distinct areas, with most respondents believing that all types of legal work could be undertaken by either men or women.

The one exception was family law, which was seen as having a female dimension. However in respect of construction, corporate and criminal law, a majority of female respondents believed that there was a perception that men were better suited to these areas.

When actual work carried out was examined, men tended to dominate in those areas which are regarded within the profession as being well paid, whereas women form the majority in those regarded by respondents as poorly paid.

Networking

The issue of male-oriented networking activities dominating the legal profession is a recurring theme in other research projects. This was not totally borne out by this research.

As many women as men undertook networking activities, which have a wide flavour nowadays – they are not simply based around the golf club! However men were likely to network more often than women, and how often people “network” did seem to have a bearing on their level of earnings.

Remuneration

It is in the area of earnings where many of the worrying aspects of the research can be detected.

Although salary levels remain fairly constant for the first five years of work across the entire profession, a steadily increasing gender pay gap began to emerge thereafter. This reaches its highest level at between 21-25 years after admission, with a gap of £36,000 in favour of men. However, even after five years the gap stands at £9,000.

This becomes more stark when private practice is examined separately, with the gap increasing at all levels: after five years following admission it is £14,000; at between 21-25 years after admission the gap is £42,000.

Although it is less extreme than in private practice, a gender pay gap at some levels can be identified in other sectors as well.

This can partially be explained by the number of women engaged in part-time working. But even when part-time workers were excluded and the earnings of solicitors working full-time compared, there was still a large gender pay gap within private practice. Only women admitted between 16-20 years earned more than their male counterparts.

The survey also revealed big perception gaps between men and women over the transparency of pay structures and whether women and men were paid equally for carrying out the same work.

The research has disclosed major issues relating to gender within the solicitors’ branch of the legal profession in Scotland. These centre around levels of remuneration, the high incidence of gender perception gaps and the continuing under-representation of women at equity partner level. Within our sample 60% men in private practice but only 20% of women were equity partners. There was a 70:30 male to female split among the equity partners.

Although by necessity issues were dealt with separately, the position of women in the profession is a product of the interaction of all of these factors. Accordingly a comprehensive strategy is called for which tackles equality issues on all fronts rather than in a piecemeal fashion.

COMMENT from the Law Society of Scotland

The Society is delighted that we have carried out this important research and started to compile an evidence base on the issues affecting people in the profession in relation to career development. Two thousand three hundred returned questionnaires and, at the time of writing, 100 people due to attend the launch event means this is an issue people are interested in and do see as important. We would like to thank each and every member who responded for helping contribute to the success of this project. The issues are complex, and this report is a vital step in trying to understand them better and help us consider what more work may be useful in the future in helping to clarify and develop the Society’s understanding.

The Society is committed to change and realises that only a committed and concerted effort is likely to achieve this. This month sees the launch of the Society’s three-year Equality and Diversity Strategy (see the article that follows at page 19), which sets out a clear commitment to work in the field of equality and what the Society hopes to achieve. The organisation sees research and monitoring as an essential element of this and proposes further projects which will in turn, as with this project, lead to specific action plans being set. Progress will be reported on publicly (including on our website).

In providing a framework the strategy will help the Society deal with particular issues such as those raised in this study around salaries. A key element, and one of our strategic objectives set in the strategy, is to promote equality to the profession. Whilst the Society cannot directly change pay structures within the profession, we can provide education, training and encouragement. This will involve amending the training programmes the Society offers, such as the mandatory course for new “partners”, to cover issues around equality and remuneration as well as specific training provision and working with the Journal to provide articles on these issues.

The Society can also lead by example, something we are proud to be doing in the field of pay structures. Currently the organisation is undergoing its own job evaluation process for a variety of reasons, including the vital issue of transparency of pay which the report highlights, and Clare McGinley from the Hay Group (who is leading the project) writes later in this edition about what it has to offer law firms.

These findings on pay undoubtedly raise a number of issues that need addressed. The Society has to act as a focus for information and motivation to assist change. We want to see firms and individuals talk about these issues, look at their own organisations and systems, and consider what action they may need to take and how this research may apply to them. Whilst salary information will always be seen as commercially sensitive information, can Scotland’s law firms rise to the challenge of proving equal pay for equal value, and pay transparency, within their own organisations?

It is also important to remember that since 2002 the Codes of Conduct for the profession prohibit discrimination in employment and service provision, whether direct or indirect. Alongside the Society’s education and training initiatives for the profession this provides a range of sanctions if a complaint is made against a solicitor, including in their role as an employer, and the Society would reiterate its commitment that there can be no place for firms or individuals that discriminate in a modern profession.

However, the statistics cited in the earlier articles are only some of the significant areas of findings and we would encourage people to download the full report from the Society’s website. The issues arising are complex: for example, we saw average earnings of women higher than those for men in the 0-5 years post-qualified experience (PQE) category, and indeed at 16-20 years PQE (in relation to full time workers). We also have guidance from experts in the field, such as the EOC, suggesting we need to include other factors, such as correlations between ethnicity (combined with gender or otherwise) and remuneration. The study also highlights issues around the length of time to achieve partnership, again something we need to examine further. Finally, it is worth remembering that being a partner in a firm is different to direct employment. Partners, in any small business, are not as well covered by employment rights in relation to benefits or salaries as employees, and that is something for Parliament, rather than the profession alone, to consider.

The Society intends to rise to the challenge and play our role in tackling these issues as part of our commitment to effective regulation, for which equality in relation to all our work, and in the widest sense of that word, is a key part. The Society is committing to collecting data on this issue again in five years’ time to assess how these issues may have changed. In the meantime we are working on a long-term study with the Scottish Legal Aid Board and Scottish Executive to examine various issues in relation to careers aspirations and decisions, which should also provide relevant data.

As well as providing hard data on issues such as salary, much of the report also deals with issues around perception and belief in relation to career development. This sees some of the myths about the profession exploded. For example, the majority of the profession (over 67%) believed they were achieving a work-life balance (which compares well with other professions). We know from a variety of studies that graduates increasingly see work-life balance as a key factor in determining their career choices, both in terms of sector and individual employers. Firms wanting to find out more about the benefits of increasing flexible working arrangements might want to start by referring to August’s Journal where this issue was examined. To continue to thrive and retain talent the profession will have to attract high quality graduates into law, whilst at the same time delivering the level of services (often round the clock) which many clients demand. The Society will need to continue to promote and encourage the development of the foundations already built by the profession.

We hope this report is the start of a debate: a debate on the complex issues around equality, a debate on the multiple approaches that might be required to tackle this, and a debate on what a successful career in law means and how it is achieved.

We would like to thank our partners in this project, both Glasgow Caledonian University for all their time and effort, and the Equal Opportunities Commission for their guidance and co-sponsorship.

Caroline Flanagan, President, Douglas Mill, Chief Executive, Neil Alan Stevenson, Head of Diversity

COMMENT from the Equal Opportunities Commission

The response to the women in legal profession research has been overwhelming and provides a robust base for analysis. The findings provide data regarding gender and careers, salaries, development opportunities and a range of other employment factors that impact upon the whole legal profession and beyond.

It is generally recognised that salaries within the legal profession rise significantly with time. Unfortunately this appears not to apply to men and women equally. As the pay increases, so does the pay gap between men and women in the profession. The survey reveals that throughout the entire legal profession there was a steady and significant gap between men and women after the first five years of employment, reaching its peak after 21-25 years’ service with a gap of £36,000. In Scotland in general the average hourly earnings for women working full time are 15% lower than for men working full time, and for women working part time hourly earnings are 38% lower. Sadly, more than 30 years on from the introduction of the Equal Pay Act the pay gap in the legal profession is simply not closing. It is time this matter is addressed, but this can only be done with commitment and action from those senior in the profession.

Flexibility is one key factor, as increasingly both men and women want to work flexibly at different points in their lives for a wide variety of reasons. The Equal Opportunities Commission Scotland has identified through recent research that Scotland’s flexible and part-time working arrangements are failing to meet the needs of working women and men, and this is strikingly apparent through this survey. It is encouraging that some policies were commonly available such as paid maternity leave and part time working; however paid paternity leave is much lower and crèche facilities, childcare vouchers, term time working and paid parental leave are not common at all. It is also disappointing, but not unsurprising, that family-friendly policies were least likely to be available in private practices.

The report provides a launchpad for debate and we welcome the partnership with the Society in working towards the production of this report. Its publication offers a real chance to put gender on the legal agenda and to ensure that equality and fairness prevail in relation to pay. However, this report also throws up the need to consider other variations on the theme. For example, there is a need for further research which provides information on the experiences of ethnic minority colleagues within the profession. The Equal Opportunities Commission Scotland has recently launched a major investigation into the participation, pay and progression of ethnic minority women in the Scottish labour market, as we recognise that issues of multiple identities and discrimination can affect issues of recruitment and progression.

The Equal Opportunities Commission Scotland looks forward to working with the Law Society of Scotland in driving forward change. Thirty years after the introduction of the Sex Discrimination Act we need to close the pay gap, open up flexible working practices and allow women and men to have equal chances and receive equal value.

Rowena Arshad is Equal Opportunities Commissioner for Scotland

The benefits of job evaluation

When two people are doing the same job, it is usually quite simple to consider the requirements of equal pay. However, when two people are doing different jobs, how can employers know whether they are of equal value, and entitled to equal pay?

Job evaluation takes the guesswork out of equal value. It is a method of judging job size and comparing different jobs so an employer can know if two jobs are of equal value, and take this into account when making decisions about reward.

Most public sector organisations use some kind of job evaluation method to size jobs and have done so for some time. The number of organisations in the private sector who choose to implement a job evaluation process is increasing with one of the reasons for this being a focus on paying people fairly and in line with equal pay legislation.

Using a job evaluation process does not mean that employers are stuck with a rigid pay scale. The trend these days is to use a broad band salary approach which will give employers the flexibility to reward performance and take into account market supplements. The job evaluation method gives an employer a sound grading system as a starting point to differentiate contribution. Having a grading system in place means that employers will be able to justify pay differentials rationally, as opposed to using the broad brush defence which is not terribly helpful.

Let’s say, for example, a firm of solicitors is asked to justify why they are paying a female associate in their trust and executries department less than a male associate in corporate. If these jobs are of equal value, the firm may be asked to defend their salary arrangements. If they had a job evaluation process in place which underpinned their salary arrangements, they might be able to defend themselves by saying something like “Both associate roles sit within the same grade but are paid differently because (a) it was necessary for us to pay a market supplement of £—, (b) in terms of our performance management system, the associate in our corporate department has been ranked higher for the past few years, which has resulted in an uplift of £—, and (c) the higher paid associate has been qualified as a solicitor for one year more, and therefore has a higher level of expertise which we reward at £—”. These are all reasons which have successfully been used to defend equal value claims in the past.

Without using some kind of job evaluation process, employers can never be sure that their reward arrangements will stand up to equal value claims. On top of that, a sound job evaluation process can be linked with performance management, succession planning and career development, which means that job evaluation can contribute much more to HR management than may be realised.

Clare McGinley practised employment law in Glasgow for four years before joining Hay Group as a management consultant. She specialises in equal pay and job evaluation, and can be contacted on 0141 226 8770 or by email: clare_mcginley@haygroup.com