Some more equal than others

Fewer solicitors claim to have experienced discrimination in recent years; more now consider childcare as a joint responsibility; and a majority are allowed flexible or remote working, though fewer avail themselves of this. But men remain more likely to hold the top jobs, and get there faster; gender-related pay and promotion are the most common types of discrimination; and women are still the ones usually expected to take time off as needed for children. So how does the profession measure up on the equality and diversity front, on the findings of the Law Society of Scotland's latest "Profile of the Profession" survey?

One prominent consultant in the area finds some encouraging signs, but believes that, consciously or unconsciously, many employers are still not giving women a fair crack of the whip. Dr Suzanne Doyle-Morris founded the InclusIQ (pronounced "Inclusik") Institute to support managers seeking to "gain a competitive advantage through inclusive leadership". Since gaining her PhD at Cambridge University 10 years ago on the experiences of women working in male-dominated fields, she has built a list of leading corporate clients. As a keynote speaker at the Society's own launch event, she sought to debunk some continuing myths surrounding a more flexible working culture. Speaking to the Journal just before the event, she expanded on some of her experiences.

Without seeking to sideline other aspects of diversity and discrimination, and acknowledging that those from ethnic minorities, LGBT groups or with disabilities are all more likely than others, on the survey findings, to have experienced discrimination, their numbers in the profession are low, and gender-based discrimination is much the most common form reported. So it is there that we focus for present purposes.

Diverging paths

It should be said also that the pattern across the profession is not uniform, and some firms take pride in the proportion of women who now sit at the partnership or boardroom table. However, the survey confirms that a pay gap between men and women emerges about five years after qualification and that, by 10 years, many more men than women have progressed to partner. While the responses also indicate that, for some solicitors, the risks and responsibilities of partnership make it unattractive as a career move, the finding that women are more likely than men to value promotion suggests that more men have already achieved a status to which a good number of women still aspire.

Doyle-Morris dismisses the proposition that there are fewer capable women ready to be promoted: "In the legal sector in particular that's just a fallacy: we've been graduating more women than men for at least a dozen years, far longer than we would expect to see them coming up through partner level."

Firms, she argues, need to examine what it is they value when selecting candidates for partnership. Could one of the culprits be that figure of increasingly suspect reputation, the hourly billing model? Already being called into question by clients due to its built-in incentivising of inefficiency, Doyle-Morris challenges its role also as a yardstick for promotion: "The person who wins is the person that can sit at their desk the longest, and that's not going to be women because they are society's main carers. So as long as you continue to work on a billable hours model, you will never have a system that will reward women to the same extent. Firms are essentially asking women to work to a male model of long, billable hours, without recognising the reason men have been able to succeed at the model is that they have been been facilitated by somebody in their life looking after the home."

What firms may not realise is that gender balance at the top level is not simply a sign of a progressive culture, but can lead to better bottom line results. InclusIQ's vision, already quoted, is founded on research evidence that diversity correlates with better financial performance. Doyle-Morris explains: "Organisations with women in senior leadership positions, or on the board, have been tied to higher return on sales, on investment and on equity – as well as higher customer and employee satisfaction scores. Essentially, when you have a diverse group of leaders at the table, you're going to reduce your risk of 'group think'. You will spot opportunities, as well as risks, that you might not necessarily see if you stick to business as usual in your leadership choices."

Selection bias

What should solicitors as employers be alert to, in selecting people for promotion? "Being alert to unconscious bias is key," she replies. "Start with your promotion systems, but dig deeper. What about the type of conversations people have in the office? Say you have a big new project or are opening a new office, Sarah might be a good choice, but some will doubt her commitment since she has two little kids. Instead, I hear senior people say: 'We don't want to burden her with a hard choice; let's not even ask her, she probably won't want to travel.' The intention is good, but the result is limiting for both Sarah and your firm. That's what I call benevolent sexism.

"Did it occur to them that Sarah's husband might be willing and able to carry out the carer duties? Or that maybe a project like that is just what Sarah needs? In the modern age, we really have to question those assumptions and have some hard conversations, and more honest conversations, with people rather than acting on assumptions".

What about pay – will the gap simply close if women achieve equality at the top table? Further research, Doyle-Morris responds, indicates a more subtle analysis: "The pay gap is biggest in sectors where there is an element of discretionary payment, like bonuses or things where you have to argue your value to the team – things that are less objective, shall we say.

"There was an interesting research that came out a month or two ago that showed that women CEOs who were the best paid were more likely to have their pay agreed by a committee, or the board, based on results – these were not women who had gone in early and negotiated large packages for themselves."

Another observation in the report is that women may be more reluctant to ask for advancement, whether in money or status. Doyle-Morris "would definitely encourage women to always go for it as much as you possibly can". While she hears many accounts of women being told, "not this year" and then seeing someone from the same training year picked ahead of them "because he can put in all the hours that God sends", the report does find that once women do apply, there is no real difference in the number of applications they make before achieving partnership. Doyle-Morris counsels employers "to be more aware of the different aspects in which women are contributing, to value people beyond hours that your bum is in your seat".

Flexibility for all

Flexible and remote working is, of course, increasingly invoked as the means by which women can put in an equivalent contribution to office-based men. Doyle-Morris agrees – but emphasises that this, in turn, should not be seen as a gender-related development. She explains: "I was heartened by the fact that both men and women [in the survey] saw the value of flexible and remote working; men, in fact, used remote working more than women did. Women relied on flexible working more, but it's not a women-only thing, or even a working mothers issue. I see it that this has to be the new business as normal – offering flexibility to all your workers. So that working mothers as a group are not treated as a problem population."

In her presentation at the launch, entitled "Three Top Myths of Managing Diversity", myth no 1 was the notion that diversity is about working mothers. Related to it is myth no 2: that women choose to leave their jobs for "lifestyle reasons", when the truth is more likely to be that another employer is simply more willing to accommodate their need for flexibility, along with their career goals.

At interview she commented: "A good way forward is to encourage more men to ask for flexibility. Young men, 'millennials', want flexibility more than previous generations for three reasons. The first is that they are more tech-savvy than any generation before; they are very comfortable with remote working. Two, lots of research shows that younger men want to be more hands-on dads with their children, than perhaps the relationships they had with their own fathers [the survey report bears this out]. Three, even if they don't particularly want to be more hands-on, they have to be, because increasing numbers of young men are married to women whose jobs are as big, if not bigger, than their own. This generation of men can't just assume that she's going to do the pick-ups and drop-offs every day, or that she's going to be the one to leave at noon because the child's sick. They're having to do more sharing, and the good news is that many of them want that element of involvement with their children. The key is to get men to ask for more flexibility as well."

Whether flexibility is sought for childcare or other reasons, Doyle-Morris argues that employers should note that it is a growing trend, and one on which it would serve them to take a long view: "What I thought was interesting from the findings was that, while a smaller minority of people did use flexible working, 40% thought it would be the way they would work in the future." It may be temporary, a fee earner may go to 80% or 60% of a full week while their children are little, but "That's not the way they're going to be for the rest of their life, and firms need to recognise that if they negotiate with people for several years, they can through enhanced loyalty, earn payback from people who will work with them for the additional 20 years after their kids are older, so you have to play the long game."

Doyle-Morris's third myth in her presentation? That "Client is our only king." Firms worry how clients will react if someone is not available when they call – but how will other staff react if a woman is managed out of the business or resigns? "That sends a far stronger message to junior women than any positive statement on a firm's website," she points out. There is also a firm's reputation with potential future employees or clients to think of – especially if the clients in turn have women in senior positions.

Caring status

I finish by asking whether she believes that full gender equality can be achieved while women are still regarded as the primary carers of children. Her answer is a straight "No". She explains: "I think we have to see fathers taking a bigger role, and there's evidence to suggest that they are, certainly more than in previous generations, but surveys show that women are still the lion's sharing child carers. The irony is that people see flexiblity as a parenting issue, but non-parents have lives worth leading too. We all have domestic lives: we've all got to eat, to keep the house clean, to organise the rest of our lives.

"I think, ironically, it will take men asking for more flexibility before things will improve for women. Because then they won't be seen as the problem population."

In profile - 3,400 lawyers

"We want to ensure that we retain the amazing talent we see coming through all the time." So said the Society's President, Bruce Beveridge, introducing the launch event for the results of the "Profile of the Profession" survey.

Carried out by the MVA Consultancy, the questionnaire, sent out in late spring, attracted more than 3,400 usable responses from the 14,000 invited to take part. Reflecting the profession as a whole, there was an equal gender split, though with more women at the younger end and men at the senior, and a little over a quarter working in-house. Ethnic minorities, LGBT groups and the disabled each made up no more than 3% of the total. None of these proportions showed much change on the previous survey in 2006.

Perhaps surprisingly, fewer than 10% had a parent who worked in the law. Overall, 29% had been to a private school (27% of the under 25s, compared with 22% of 25 to 35-year-olds: evidence of difficulties now affecting lower income groups?).

Almost 50% of men, compared with one third of women, consider achieving partner status as important; and the report quotes various comments as to why partnership might not appeal.

Working patterns disclose that 77% are full time and 17% part time (the balance are condensed hours or other variation). But 52% work additional hours (usually unpaid), as many believe this is equated with commitment by their employer and, while 50% are happy with their actual hours worked, 39% would like to see theirs reduced.

Whereas 62% are allowed to work from home and 59% remotely, only 25% take this up at least weekly. Of the 17% who work amended hours, most (and predominantly women) do so for childcare reasons; men are more likely to cite work-life balance, personal preference or a phased retirement plan. Two thirds feel their employer is supportive, but most of the rest think it has had a "lasting negative effect" on their chances of promotion. Positive and negative effects of working away from the office are cited.

Despite a finding that women take longer to achieve partnership, no connection has been detected with working amended hours. However, a career break definitely has such an effect - and a break of more than six months is liable to have a disproportionate effect.

Turning to pay, 63% overall are in brackets up to £55,000 a year, and 6% over £150,000 - with, not surprisingly, women more prevalent in the former group. Gender differences emerge from five years' PQE, and age 36 or so, both in private practice and in-house.

Actual incidents of discrimination in the last five years are reported by 15%, but with higher proportions among the various groups protected by the Equality Act. Gender, age and pregnancy/maternity are the three most common types, reflected in relation to promotion, pay, networking and communication (being left out). But numbers affected are down in each case since the 2006 survey, when 22% reported an incident in recent years.

A further chapter records attitudes to applying for judicial appointments, without providing much by way of statistical analysis.

Concluding, the report highlights a number of elements "worthy of ongoing/future monitoring":

• to ensure that young women entering the profession now and in recent years are encouraged to remain within the profession and that the gendered pay gap reduces over time;
• to understand address the barriers that appear to exist throughout the profession (either real or perceived) so that those working amended hours, and/or more flexibly, and those that take career breaks are not held back in their careers and denied promotion;
• whether more members take up working from home/remotely as time goes on and technology makes this seem more "normal", and whether this is considered to be a benefit or an imposition on personal time;
• instances of discrimination within the profession, with steps being taken to reduce/eliminate these;
• the incidence of active bullying and harassment, which although relatively low, may be of concern to the profession; and
• possible alternative approaches to ensure that the needs of groups with protected characteristics are understood.

Janet Hood, convener of the Society’s Equality and Diversity Committee, recognised the need to encourage the profession to understand the benefits of sound practices. Acknowledging that some solicitors had asked for guidance in that connection, she appealed to her audience to write in about what they would like to see produced.