Lifting the lid on the law

Progress on equality and diversity, but many in the profession somewhat unsettled as to their future. These are among the headline results from the 2018 Profile of the Profession survey commissioned by the Law Society of Scotland, published in December.

Narrowing the gap

On gender equality, the striking finding is that the median pay gap has almost halved since 2013, down from 42% to 23%. This is measured by comparing the midpoint of the median category of earnings for male and female respondents, which gives respective figures of £55,000 and £42,500. (Overall, 66% of respondents were earning up to £60,000, 18% more than £80,000 and 12% more than £100,000.) Thus the relative proportions of those at more senior levels will affect the comparison, and there are still more men to be found in such positions. 

However there was a wider “bonus gap”: doing the same comparison in relation to the sums anticipated by respondents who expected to receive a bonus, women come out with only half the figure of men, or £2,000 against £4,000.

Men also advance more rapidly. Of women who had become partners, 38% had spent seven or more years at senior associate or other lower level before being made up, compared with 20% of men, and about 6% more had to put themselves forward for elevation to partner. 

At the same time a higher proportion of men attach importance to achieving this status. From individual comments quoted in the report, maternal care reasons are among those cited for not seeking to become partner, as are the belief that women are disadvantaged due to bullying, or have to put in more effort in networking and the like; but other comments could equally have come from men: poor work-life balance, risks not matched by rewards, too much stress, not wanting the management, previous bad experience (such as burnout), preferring fulfilling work to status, or having different career aspirations. In summary, nearly 40% of men who are not already partners do not attach importance to it, or don’t intend to work in private practice, compared with 54% of women.

Seven year itch

A particularly notable, and worrying, statistic is that 54% of all those who answered the survey have considered leaving the profession in the last five years. Broken down by length of service, the figures range from 30% of trainees to 69% of those qualified between six and 10 years. By gender, the latter figure represents 60% of men but 73% of women – almost three quarters.

Why? Work-life balance is the reason most commonly given (71%), followed by better pay or new opportunities elsewhere (49%), and lack of opportunities within the profession (32%). While a higher percentage of women cite the last of these factors (35% against 25%), there is little gender difference in the other two. (Where men feature more is in looking forward to retirement.)

The sentiments expressed are mirrored by career aspirations as lawyers. Asked to name their most important goal over the next five years, improved work-life balance was the most sought-after for 32% of respondents, with little gender difference – followed by promotion or progression (26% of women; 19% of men), and increased salary (14% and 12%). Between 5% and 6% appear to be set on leaving the profession.

Moreover, the desire for a better work-life balance increases with experience, being chosen by 17% of trainees and those up to five years qualified (more of whom seek promotion or progression), but 33% of those qualified between six and 20 years, and 43% of those more senior still.

It would be interesting to know how close people feel they are to achieving this – and indeed, come the next survey, whether they have actually done so, given that 24% say they have a reasonable balance, and a further 49% that they mostly do. So either a proportion of those who have considered leaving the profession in order to improve their work-life balance are now doing better, or some of those who are “mostly” achieving balance are not satisfied with that.

Flexibility going backwards

How can employers meet this need? Addressing hours worked, and levels of flexibility, are the obvious places to start. Some of the individual complaints voiced are instructive: being required to work outside official hours, or on holiday, perhaps with promotion turning on complying; having to cancel personal plans, or even leave, if required by work; pressure of long hours or feeling always on duty; tiredness or stress making it difficult to unwind.

Only 10% of respondents do not work beyond their contracted hours. While for 40% this overtime – unpaid in all but a few cases – does not exceed six hours a week, for one in three it amounts to between seven and 15 hours, and one in 10 work more than 16 extra hours every week. (A small percentage did not know, or preferred not to say.) The figures are similar whether or not the solicitor has dependants. Working at weekends, and/or while on holiday, is not unusual.

Surprisingly, fewer solicitors say they have access to flexi-time than in the 2013 survey: 35%, down from 42%. And 18% of those who do have access say they would not feel comfortable to use it if accrued. But a similar number say they would not be able to continue in their job without access to flexi-time. In addition, those who make use of their right are considerably more likely to feel they are (or mostly are) achieving a reasonable balance than those with no flexi-time – outscoring them by 87% to 68%. Also worth noting is that those with dependants, and those with a disability, are both less happy, by some percentage points, when asked as to the balance in their lives.

The report separately notes that 21% of respondents work “amended hours”, such as part-time or condensed hours, though there is no comparison figure from 2013. Of these 21%, two thirds gave care responsibilities as the main reason. However a sizeable minority feel that taking this option has a negative impact on their career progression, either permanent, or temporary pending their return to full-time work.

One breakdown not available is whether any of these figures differ for those working in-house, an option which is often thought to be more appealing to female lawyers as offering better flexibility. Are in-house lawyers as unsettled? Do they have the same aspirations? Do they work as much overtime? Do they have more flexi-time? The survey does not tell us.

Picked on

Are solicitors still experiencing discrimination, of any type? Sadly, yes. Overall, one-third have either experienced or witnessed discrimination in the workplace, and one in five have experienced it personally, 72% of the latter within the last five years. Personal experiences are reported by 26% of women but only 10% of men; 32% of non-British whites and 27% of other ethnic groups, compared with 19% of British whites; and 19% of heterosexuals compared with 22% of those with another orientation. Gender is easily the most common factor blamed, at 60% of all instances in the past five years, followed by age and working amended hours, both between 20 and 25%. It can happen in relation to salary, work allocation, training and development, being kept informed, networking, allocation of benefits, securing a first position, or even from the bench in court.

Bullying, harassment and sexual harassment are also a problem, one experienced respectively by 16%, 6% and 3% within the last five years (19% overall). And while the problem is greater for those aged under 35, it is by no means confined to them. More than 40% of respondents say that bullying is either systemic (happens daily), or frequently occurs, in the legal profession; more than 20% say the same of harassment; and not quite 20% in relation to sexual harassment. Fewer than 20% of those who had experienced or witnessed such conduct felt it had been dealt with appropriately. 

In fairness, however, comments are also reported that such incidents do not happen more frequently in the legal profession than in other fields; that while casual sexual harassment was previously common, this has decreased over time; and that most law firms are now more committed and better at tackling these issues than they were in the past.

Various suggestions are offered on how to deal with the problem: anonymous surveys within an organisation; training and insight in relation to personal behaviour, and likewise unconscious bias; better support for those affected; and more proactive work by the Society, which should give the subject as much prominence as anti-money laundering.

Agenda for action

The Society’s response to the survey is actually quite detailed. A 24-page document published with the report sets out its proposals for action in chapters corresponding to the main themes of the survey – along with how success would be measured.

To end bullying and harassment in the profession, for example, the Society will host “a summit of leaders from across the legal professions” to discuss the extent of the problem and collective efforts to effect cultural change; this alongside work with other justice sector bodies, a series of Chatham House focus groups with those affected by such behaviour, and highlighting the potential for complaints of professional misconduct from such incidents. The number of complaints forwarded by the SLCC each year will be monitored, as will issues raised via the trainee helpline (these will remain anonymous as they currently are), all with a view to eliminating the issue by the next survey.

Likewise, leaders of the profession will be asked to support LGBT+ equality and to demonstrate inclusivity, to make the profession “a place where all LGBT+ members feel comfortable to come out at work if they want to do so”. The success of the 2017 #theseareourprinciples campaign will be used to develop something similar for solicitors with disabilities, along with a service to support applications for reasonable adjustments and guidance on adjustments that can be made – all so that no solicitor feels discouraged from even asking.

On gender equality, the Society will engage with employers to promote flexible working and eliminate aspects of bias, encourage reporting of partner earnings, offer unconscious bias training, and embed equality and diversity into the wider CPD programme – seeking a majority perception of improvement come the next survey in 2023.

And on retention within the profession, there will be guidance on “mainstreaming flexible working for men and women at all stages of their career”, promotion of good practice through tender processes for legal services – which demonstrates the important role that the client plays in this – career mentoring targeted at groups underrepresented at senior levels, an Equality Excellence kitemark for trailbreaking employers, and action to build a “no tolerance” culture towards violent and threatening conduct – all while moving the Society’s (now voluntary) equality standards into the regulatory sphere. It is hoped that this will see a significant drop in those considering leaving the profession: “We would like to see a majority of respondents at our next survey indicating that they have access to flexible working.”

But while the Society is keen to reduce the levels of dissatisfaction among lawyers, it does note by way of comparison that the issues highlighted are shared across wider society: for example, 80% of teachers in England, and 68% of those in Scotland, have considered leaving their profession; as have 69% of principal dentists and 57% of associate dentists, according to various other studies. 

President's promise

The Society is committed to carrying forward the proposals in its response to the Profile of the Profession report, President Alison Atack tells the Journal

The Law Society of Scotland’s Equality & Diversity Committee, which commissioned the independent research and co-ordinated the Society’s response, is “determined” to take forward the proposals for action in the response, Alison Atack, the Society’s President, has assured the Journal.

What stood out for her most about the findings? “On the positive things, it did surprise me that the gender pay gap had dropped quite so much (42% down to 23%). The other thing was that the number of female partners has risen quite a bit [up from 25% to 30%]. Also 75% thought that gender equality had improved, that’s a big plus point.”

Another surprise, one that the Society wants to look into more closely, is an actual decline (not only by proportion) in the number of young men entering the profession – down 5% in the last four years. At the same time it wants to halt the trend of women leaving the profession by around age 40. “That’s an alarming one; how do we get them to stay? Personally I would say flexible and home working with women is really important and it’s a surprise that the proportion on flexible working seems to have dropped. Strangely, I think it’s a question of trust; employers maybe don’t trust women who have children at home to go home and work rather than play with their kids. There is an education issue there, I think.”

She adds: “Certainly in the Society itself I’m amazed at the amount of flexible working. It’s a great working environment. I think it’s only a minority of those working in private practice and in-house that have this same level of flexibility. It’s important that we know how to retain the talent in the profession.”

Would it not undo a lot of the Society’s work on gender equality if more women don’t feel they can stay in the profession long term? “Yes, there’s something happening that we haven’t got to the bottom of, but I don’t think it’s just women: it seems to be across the board, especially those six to 10 years qualified which is a really strategic time for people to be thinking of leaving the profession, men and women. 

“Achieving a work-life balance is the most important career aspiration over the next five years for a third of respondents. I think this is a millennial thing; it’s coming through a lot more that that’s what people want. I think that’s great; it’s not anything I ever achieved in my career but it’s very important.”

She also notes that there are many in that age bracket who are not looking for partnerships. That has implications for practices’ succession planning; and perhaps whether it is necessary to look at alternative firm structures to partnership. “There is a problem at the other end with ageism too: older people in the profession aren’t always well treated.”

Ingrained bias

Does the proposal to host a summit of leaders from the profession on equality issues suggest that there is basically a problem of institutional bias, whether of gender or otherwise?

“Certainly. People aren’t conscious that they are biased; there needs to be more of an education programme around that. It’s important that there will be men involved in that as well, to champion it: it’s men’s attitudes we have to change because there are still more men at the higher end of the chain, though unfortunately there are women too who are bullies and harass people.”

The President confirms that the Society is looking at bringing its equality standards into the regulatory framework, perhaps making equality and diversity training compulsory. And it will seek to bring complaints of professional misconduct in appropriate cases of bullying, harassment or sexual harassment.

Another initiative could be to attempt to replicate the success of #theseareourprinciples, the campaign to support those of non-binary sexual orientation, in other fields, such as disability or those of BAME (Black, Asian and minority ethnic) ethnicity. What made the earlier campaign successful? “It was mainly the profile rating and the fact that so many high profile people came forward to support the campaign and show their support for it on video, including the First Minister. It was the amount of engagement through social media, the amount of supportive comment and the raising of the profile for the issue that worked so well. We are going to do exactly what worked for that and apply it to other areas, for example BAME because it’s important that we raise the profile of members of the profession who are in that community. The research shows that progression for BAME colleagues is lower, it takes them longer to get to partner, and if they happen to be female BAME it’s even longer.”

Finding a traineeship, or a first qualified job, can be a particular barrier, and action could include providing mentors, as well as further work at school level so that careers teachers encourage talented students to think about law as a profession. 

Overall, however, Atack believes the solicitors’ profession compares favourably with others. “Under BBC estimates, 50% of women and 20% of men there have been sexually harassed in work, and we are down at 3%. That’s still 3% too many; likewise bullying at 16% in the last five years is an unacceptable figure. 

“There is also the stress and anxiety that we are hearing more and more about, and mental health problems. But as a profession we are not alone. Today I saw a headline saying that half of teachers feel stress in the classroom; it is taking its toll mentally. There is a high percentage who feel they are stressed in the legal profession; we’ve done quite a lot to help that with LawCare and our Lawscot Wellbeing.”

Atack accepts that the new proposals for action are necessary, “to make it a fair profession as it should be, but when you compare it with the other professions then I don’t think we’re doing too badly”. 

She concludes: “The whole idea of the survey is that we will make an action plan which will help us improve and audit. We’ve done this regularly since 2006; this is our fourth survey of this type and I am hopeful that by the next one we will see more improvement.

“As a profession we should have a zero tolerance for bias, bullying and harassment in our sector. We have to encourage a work environment which allows talent to flourish in as stress-free and flexible a way as possible. Solicitors have worked extremely hard to join the profession. We want them to have a long, happy, successful career in law. I am certain that by the Law Society working with solicitors and their employers, we can achieve this.”