Minding the gap

It is 50 years since two groundbreaking pieces of legislation – the Sex Discrimination Act 1975 and Equal Pay Act 1970 – came into force. Both acts were designed to counter widespread and blatant discrimination against women. The effect was to make justiciable the rights of women to equal pay for equal work, and latterly to develop the right to equal pay for work of equal value.

The acts landed in a context where the law and the legal profession itself had a poor record. There has been significant progress, but much remains to be done.

The number of women entering and remaining in the profession has rocketed in the interim. Women have accounted for over half of practising solicitors since 2018, rising to 53% by 2023.

But that ‘horizontal’ dominance has not yet translated into ‘vertical’ equality: 47% of salaried partners and 32% of full equity partners are women. As well as the seniority gap, there also remains a significant gender pay gap, especially at elite firms where the professional rewards are greatest. Office for National Statistics figures show that in 2023/24 the overall gender pay gap among all lawyers was 17.6% – compared with 14.5% in the country as a whole. For solicitors, the gap was 10%.

On the face of it, such gaps are not unbridgeable. But they are much wider in most elite firms. In 2023, the median pay gap at magic circle firms was between 33% and 54%. The mean figures were 18% to 58%. Alone among the magic circle, Slaughter and May has reverted to refusing to provide figures that include its equity partners.

According to Bar Council research, meanwhile, at the self-employed bar there is a gender pay gap at every year of call and in every practice area.

To try to get a picture of the advances made in the last 50 years, the Next 100 Years project, successor to the First 100 Years initiative which charted the history of women in the law, will begin a survey asking women lawyers for their experience.

Three years ago, the project, the brainchild of solicitor Dana Denis-Smith, published research with Gapsquare (part of XpertHR) that found 84% of women lawyers believe they will not see true gender pay equality in their working life. Nearly a third thought it would not happen in the next 100 years.

The report, which analysed gender pay gap reports filed with the UK government, showed that the legal sector, at its current rate of change, was still 86 years away from pay equity between women and men.

Worryingly, notes Denis-Smith, the report also found that, while 92% of legal professionals surveyed agree that the gender pay gap is a concern for them, 62% said that fixing it is not a priority for senior management in their firm.

‘Arousing false expectations’

The Sex Discrimination Act 1975 made it unlawful to discriminate against women or men ‘on the ground of sex’ or marital status in matters concerning employment, training, education, harassment, the provision of goods and services, and the disposal of premises.

It established three statutory forms of discrimination that became known as direct discrimination: treating someone less favourably because of their sex; indirect discrimination, where a policy or practice applies to everybody but disadvantages a group of people because of their sex; and victimisation, where someone is treated unfairly because they raise a complaint about discrimination.

At the time, notes Anne Morris in her chapter on the act in the book Women’s Legal Landmarks, a woman could be refused a job because their employer preferred a man and there were still laws restricting women’s permissible occupations and hours of work.

Introduced by James Callaghan’s Labour government, which had come into power in 1974, the act followed and widened a private member’s bill.

But, as Morris notes, even the white paper that preceded the bill, Equality for Women, cautioned against expecting too much. ‘It is important,’ the paper said, ‘to recognise the inevitable restraints on what can be achieved by legislation, so that it is seen in proper perspective, without arousing false expectations or encouraging a sense of complacency.’

The act did not apply to firms with fewer than five employees and included an exemption that allowed employers to show a ‘genuine occupational requirement’ for a man to do the job.

One of the biggest flaws, Morris explains, was its underlying principle that women should be treated in the same way as a man in the same circumstances – an approach, she says, that ignored the ‘systemic inequalities’ in education and in family structures which prevented women competing on equal terms with men.

It also ignored the fact that only women experience pregnancy and childbirth, adds Morris. There were no provisions dealing with them. Initially, she adds, the courts held that a woman who had been dismissed because she was pregnant could not bring a sex discrimination claim because there was no man with whom she could be compared.

Still, Morris insists, the act was a ‘marker on the road to modern anti-discrimination law’ and alongside wider European legislation ‘did alter the legal landscape for the better’.

Amended over the years, the act was repealed when sex discrimination was included with other ‘protected characteristics’ in the Equality Act 2010.

To enshrine equality of the sexes in law was an ‘important symbolic statement that expedited and amplified the social change in attitudes towards women’, says Tarun Tawakley, partner at Lewis Silkin and member of the Law Society’s employment law committee. But, while the two acts ‘were critical in highlighting the gender pay gap and promoting equality of the sexes more broadly’, he argues that the principles contained in them have not kept pace with the challenges facing women in the workforce.

Despite the Equal Pay Act, he says that in today’s increasingly professionalised labour market, many companies preserve a level of secrecy over individual pay and benefits, which does not give women the information necessary for them to assess whether they have grounds for a claim.

‘I feel incredibly lucky to have grown up in an era and a country underpinned by legal protections against sex discrimination,’ Clare Murray, managing partner at the specialist employment and regulatory law firm CM Murray, tells the Gazette. ‘The Sex Discrimination Act 1975 laid the foundations for future generations of women, including my own, to fulfil our ambitions and to break through the barriers put up around women to keep them in their place and keep them silent.’

But, she argues, the act by itself is a ‘blunt instrument’ and women face many difficulties enforcing the rights that they were given.

Murray highlights the severe delays in employment tribunals that mean potentially having to wait 18 to 24 months for a hearing, the lack of public funding and the high cost of bringing claims.

In addition, ‘significant underfunding’ of the Equality and Human Rights Commission, and the stigma that can still attach to bringing a sex discrimination claim – even successfully – mean that ‘the 1975 act has yet to achieve its full early promise’.

Aside from ‘astonishingly common’ sexual harassment and unequal pay issues, she points to current examples of discrimination faced by women, including dismissal when they reveal they are pregnant or replaced by their maternity cover, or the refusal of flexible working to allow them to balance career and child-rearing.

'I feel incredibly lucky to have grown up in an era and a country underpinned by legal protections against sex discrimination'

Clare Murray, CM Murray

Research by campaign groups Pregnant Then Screwed and Women in Data recently showed that up to 74,000 women lose their job every year for being pregnant or taking maternity leave.

Tawakley welcomes the recent changes to early years’ childcare funding, but insists that to effect wholesale change the government will need to conduct a review of the statutory family leave regime, particularly the disparity between maternity and paternity leave. ‘In the meantime, employers have a chance to shift the dial on this now through their own family leave policies and benefits,’ he says. For example, his own firm Lewis Silkin has implemented a ‘New Parent’ leave policy entitling all new parents to six months’ leave at full pay.

The firm, he adds, also has equal male and female representation on both its boards, while its chair and one joint managing partner are women.

Many law firms have introduced flexible working policies and other support, including increased parental leave, mentoring and return to work programmes. Some have also implemented targets to increase the number of women in senior roles, including partnership and leadership positions. For example, national firm TLT has stated it wants 50% of its partners to be women by 2029.

Increasingly, firms are also looking to increase awareness of the impact that menopause has on women, as well as initiatives and policies to support them.

Kingsley Napley has signed the Menopause Workplace Pledge run by organisation the Wellbeing of Women, while another firm appointed a menopause officer. In January, Dentons introduced the MenoVest, which it described as a ‘menopause simulator and empathy tool’. The sleeveless gilet, which has an integrated power pack that heats up and cools down at irregular intervals during the time it is worn, is intended to enable male colleagues to experience some symptoms faced by women undergoing menopause.

Fair allocations

Denis-Smith goes on to highlight practice areas where female progression has been too slow, particularly in criminal law, corporate and finance. In larger City law firms, the percentage of female partners is still under 30% – and even lower for equity partners.

As Denis-Smith’s research shows, in too many firms, senior management does not have a strategy for improving equality. She also fears that the backlash over diversity and inclusion currently seen in the US may influence firms here (see p22).

Moreover, Denis-Smith points to barriers such as the long-hours culture and a focus on billable hours in law firms that can be incompatible with family life. Despite opportunities for flexible working, she suggests women fear that working part-time will negatively affect their careers. Only a few part-timers become partners.

To help improve the situation, she calls on firms to look at fair work allocation practices and more inclusive networking events. In addition, firms ‘need to establish clear pathways for advancement, setting out what it takes to make it from trainee to partner’ and having better support for ‘career sustainability’, particularly after maternity leave.

‘It’s also about managing client expectations,’ insists Denis-Smith, who wants to see firms ‘advocate for reasonable client demands that respect family commitments’.

From November 2017 to January 2018, the Law Society ran a survey as part of its Women in Leadership in Law project. This captured the views of 7,781 women and men on why women were not progressing to senior positions.

Christina Blacklaws, then president of the Society, says: ‘We found a simple answer – systemic bias.’

Since then, she laments: ‘I’m not sure things have greatly improved. You could fairly easily make the case that they’ve got worse,’ with some firms going backwards in respect of the gender pay gap.

Agreeing with Denis-Smith, Blacklaws suggests: ‘Gender balance and equity issues may not have the centrality to some law firms’ strategy that they should and sometimes lip service is paid without real commitment to positive change.’

Law firms ‘should have this as a key strategic aim’ because research shows that diversity of leadership enhances profitability. ‘The cold, hard business case is made out even if the moral one is not prioritised,’ says Blacklaws, calling on firms to sign up to the Law Society’s Women in Law Pledge, which followed its research.

‘It’s all about ownership of success in the leadership team, committing to clear goals and being accountable for their achievement,’ she adds.

One area where progress has been made, suggests Murray, is in clamping down on sexual harassment. She attributes this in part to the Solicitors Regulation Authority’s efforts to change the culture in law firms.

Requiring firms to investigate and report any allegations of sexual harassment, or other unlawful discrimination, and requiring partners to intervene, rather than turning a blind eye, she says, is ‘bringing about a significant shift in awareness and attitudes in the sector’.

Speaking out

Murray cautions against complacency, suggesting that younger women remain reluctant to speak out about bad behaviour. At a recent event organised by the City of London Solicitors’ Company, part of a programme of events focusing on the career progression and development of young female legal professionals, she reports that one young woman asked: ‘How do you respond to an inappropriately personal question by a senior male colleague, in a way that is safe and will not harm your career?’

Murray concludes: ‘It felt depressing that 50 years on from the introduction of the Sex Discrimination Act 1975, women are still having to ask the same questions and to deal with the same scenarios as those faced half a century ago.’

Ensuring change for future generations, she concludes, requires action not just by law firms, but also in schools and universities, and by regulators and government.

 

Catherine Baksi is a freelance journalist