Society's "double standards" on gender equality

This criticism is made at an important juncture for the legal profession. Not only is it International Women’s’ Day – a global day celebrating the social, economic, cultural and political achievements of women – but also a call to action for accelerating gender parity.

In the legal profession, there is welcome progress and increased representation of women both within the profession and the management of the Law Society of Scotland. However, not enough is being done to address the internal barriers against gender parity.

The Society has published its own equality strategy for the period 2014-17, but the content of the document and the criteria set out, which are meant to be binding in all areas of the Society, are not being implemented or followed.

The Society controls the regulation of the legal profession in Scotland. It is therefore in a powerful position to influence change. However, discriminatory policies, criteria and practices remain, and the Society – whose governance remains dominated by white middle class men – is resistant to change.

In point here are the professional practice rules. These rules are subordinate to non-discrimination law, yet the Society, and its Council and Regulatory Committee, do not accept that at least three of the rules have the potential to discriminate.

The first concerns automatic restrictions placed on the practising certificates of solicitors who return to the profession after a gap of one year or more. The second is the rule requiring four years' unrestricted practising certificates before operating as a principal (manager) of a legal practice. The third, a similar rule to the second, restricts the ability of a solicitor to supervise a trainee without a requisite period holding a practising certificate.

In all these cases, the rules indirectly discriminate, whether concerning sex, pregnancy, disability or other similar grounds.

No one is arguing that experience is unnecessary to perform a function, receive accreditation or manage your own legal practice. However, the rules above simply assume that someone will be automatically experienced enough by reference to holding a practising certificate alone.

It is this approach which discriminates and must change.

There are no criteria and no standards established regarding being a manager of your own practice. Likewise, the Society has not published any objective standards to compare experience with the ability to supervise a trainee. The automatic restrictions placed on practising certificates when someone returns to practice also lack objective justification.

They mean that someone with a lot of experience, skills or even professional qualifications in management, would be excluded from accreditation because they took time out to have a family or were out of practice owing to illness or disability, for example.

What is troubling here is the acknowledgment by the Society within its own Equality and Diversity Strategy, which states: “Professional bodies, such as the Society, need to take particular care in relation to indirect discrimination, where rules around assessment, entrance requirements or standards of practice can ‘accidentally’ have a less favourable impact on certain groups. For example, a requirement to have 10 years of practice experience prior to applying for a specialist status would discriminate against women. This is because they are more likely to have taken time off at some point during their working life for maternity reasons and may therefore find it harder to reach this standard. The issue is that a simple time requirement does not equate to a level of experience/competence, and so it could be seen as an unfair barrier.”

Why has no action been taken to address indirect discrimination and internal barriers to equality?

I have constantly raised this with the Society, asking that the potential for discrimination is addressed and the rules be amended. However, nothing has been done.

I am a disabled solicitor, and share a common experience with female colleagues who return to work after taking time off to start a family, only to find their practising certificates unnecessarily restricted, or being told they have to wait until they can again become accredited.

What is disappointing is that the Society refuses to do anything about this discrimination, and decisions are all taken in secret without any external scrutiny.

The Society refuses to publish its own equality and human rights assessments of the practice rules, and does not have a proper mechanism in place to address grievances from solicitors who claim discrimination.

This is a fundamental breach of natural justice and some very basic human rights.