Has The Pandemic Halted Diversity’s Progress in Law?

Time and time again we hear the importance of diversity in the workplace – especially in the legal sector. Infamously known for being a white, male-dominated industry, law firms and their counterparts have been told time and time again they need to try harder to dispel the lack of diversity in a sector that is supposed to represent the people’. Some firms try; they are proactive and responsive when taking into account how representative of society their legal team is, however, with the pandemic shifting many workplaces to remote working, there is no shortage of workplace discrimination (see page 40) and ignorance towards diversity and equality remains.

With lockdowns occurring globally and carers working from home are now having to work and care simultaneously, the pandemic has the potential to not only push diversity and inclusion (D&I) agendas to the bottom of the priority list, but it also allows the opportunity to further push disparity between classes and genders in the legal industry.

According to a new study, for example, working women are currently experiencing the worst effects of the COVID-19 recession, unlike in previous downturns, which hit working men the hardest. A new McKinsey analysis shows that women’s jobs are 1.8 times more vulnerable during the coronavirus pandemic than men’s jobs: Women make up 39% of global employment but account for 54% of overall job losses as of May 2020[1]. At the same time, the pandemic has exacerbated existing inequalities in society, with employees having to care and carry out other domestic responsibilities. Evidence, unsurprisingly, points towards women carrying out a greater share of these responsibilities: a study by the Institute for Fiscal Studies and the UCL Institute of Education found that during lockdown, mothers were more likely than fathers to be spending their working hours simultaneously caring for children. This resulted in mothers doing, on average, a third of the uninterrupted paid-work hours of fathers[2]. With a high proportion of female employees, law firms should consider the impact that remote working has had, especially when reviewing performance, in order to ensure the gap between male and female lawyers does not widen.

According to a new study, for example, working women are currently experiencing the worst effects of the COVID-19 recession, unlike in previous downturns, which hit working men the hardest.

In a study conducted by the SRA in 2019, they found that women made up 49% of lawyers in law firms. This was up by 1% since 2017. For the other staff working in law firms, women make up three quarters of the workforce, with no change since 2017. There is also a greater proportion of female pupil barristers, at 54.8%, than male pupil barristers, at 45.2%. However, the disparity begins to show further up the legal ladder, with just 34% of partners being female in 2019 and with 16.2% of QCs being women.

The gap between the amount of female partners and QCs  has an impact on the ethos of law firms themselves, says John Szepietowski from Audley Chaucer solicitors. “Women lower down the legal ranks are less likely to speak out, whether that be in reporting inappropriate behaviour or calling out offensive comments dismissed as ‘banter’. Notably, sexual misconduct in the profession reached a record high in 2018-19, with reports increasing from last year alone by 16% according to a Freedom of Information Request. Any future diversity initiatives need to address a change of culture, not just pay lip service to it.”

Furthermore, the thorny issue of pay remains. Figures published in 2019 by the Law Society show that the mean pay gap between men and women is 10.6% with the difference in bonus pay being 12.8%. This is an improvement from 2018 and, while it is still a significant gap, increased transparency and scrutiny of practices have made some impact.

“The national lockdown has had its challenges, but it has encouraged remote working and increased flexibility in working patterns. If maintained, this could encourage more women to work full-time after maternity leave and men to take more responsibility for childcare. In the long term, this could address both issues of representation and pay as women are no longer penalised in pay nor promotion for having a family. In the short term, law firms benefit from a happier, more productive workforce”, John explains.

New research[4] has revealed Brits’ perceptions of those working in the legal industry, highlighting a misconception when it comes to diversity and representation.

The UK is also especially guilty of idolising the class system, making it harder for the Bar and judiciary to be more than just Eton educated elitists. A recent report into judicial diversity by Geoffrey Bindman QC and Karon Monaghan QC of Matrix Chambers found that 71% of the senior judiciary attended independent schools, with one in seven judges going to just five independent schools: Eton, Westminster, Radley, Charterhouse and St Paul’s Boys. Of the 12 Supreme Court judges, ten are privately educated and eleven are white men[3].

And it doesn’t end there. New research[4] has revealed Brits’ perceptions of those working in the legal industry, highlighting a misconception when it comes to diversity and representation. Conducted by The University of Law (ULaw), the study revealed that nearly half (48%) of Brits picture someone who works in the legal industry to be white, with just over one in ten (12%) saying they picture a person of a Black or Ethnic Minority background.

The study further revealed that while over half (51%) of mixed/multiple ethnic groups and Asian/Asian British (54%) people said they think people working in the legal industry can be any ethnicity, only 37% of white people said the same. Overall, a staggering 48% of Brits picture someone working in the legal industry to be white and a quarter (25%) of people expect them to be male.

ULaw’s research has highlighted a stark reality, which is that more needs to be done to redefine what someone working in the legal industry can look like. Patrick Johnson, Director of Equality, Diversity and Inclusion at The University of Law, says that it is no longer a profession solely for upper class white males, but in fact, it is accessible to all. This a big barrier to break down. Action must be taken now to open up the sector, create equal opportunities and demonstrate that a career in the legal industry is open to anyone, no matter their background.

Approximately 40 %[5] of barristers with over 10 years’ call have firsts from Oxbridge, so interviewing for a pupillage can be extremely daunting.

“Looking at our current students provides a promising picture for the future of our profession. Amongst our students, 55% of our undergraduates and 41% of our postgraduates are from ethnic minorities. In terms of gender, 77% of our current undergraduate cohort and 67% of our postgraduate students are female”, expands Patrick.

Earlier this year, The University of Law also launched its ground-breaking Change the World Fund. The initiative offered a £5,000 grant along with specialist mentorship, to give students the opportunity to affect real change on key issues across the globe. “Through initiatives like the Change the World Fund and research such as this, we hope to continue to challenge perceptions of the legal industry for the better”, says Patrick.

This is not the only initiative in place to help level the playing field. BPP University Law School launched a speaker programme led by Ravi Nayer, a Partner at City law firm Brown Rudnick LLP as part of the firm’s wider Equity, Inclusion and Diversity programme to improve diversity across the legal profession. The programme aims to help students present themselves with greater confidence in the workplace, especially around those with backgrounds different to their own.

The initiative is being introduced after research from the University highlighted a lack of confidence with many respondents unconvinced that the sector is as inclusive as it thinks it is:

• 30% of future lawyers don’t feel comfortable talking in front of a group.
• 43% of prospective lawyers worry that they will be judged by the way they speak.
• 86% think candidates from less privileged backgrounds still have a hard time fitting in at both law firms and barrister’s Chambers.

Ravi told us: “Approximately 40 %[5] of barristers with over 10 years’ call have firsts from Oxbridge, so interviewing for a pupillage can be extremely daunting.  Through Brown Rudnick’s speaker programme, we want to help students present themselves with greater confidence in front of legal professionals whose backgrounds are different from their own.”

Speaking to Chambers Student, Stephen Vullo QC of 2 Bedford Row, who heads up the pupillage selection panel explained how those from state schools have less confidence. Within private education, children are trained to do public speaking from a young age. A good way to try and make the judiciary a more eclectic range of legal professionals is by giving the same opportunities to those from state schools.

Nonetheless, 45% of women working in law believe that prioritising their work-life balance would jeopardise their success in a firm, while 16% thought that showing commitment to their family would negatively affect their career progression possibilities.

“To get a job you must win the confidence of future colleagues and business leaders and, once you have qualified as a solicitor or barrister, you need to instil confidence in clients and colleagues who instruct you. Presentation skills help to build confidence and we are trying to inspire students to recognise and appreciate the value of their own stories and experiences. This will make our profession more rich, empathetic and accessible and is the reason why improving diversity is a priority for Brown Rudnick and across the legal industry”, says Ravi.

But class isn’t the only issue. According to McKinsey, employees who identify as lesbian, gay, bisexual, transgender, queer, or gender nonbinary (LGBTQ+) disproportionately fear losing ground at work and report feeling isolated[6]. And although companies have responded rapidly, employees—and in particular diverse employees and working parents—are still struggling with the multitude of challenges posed by the pandemic. The result: only one in six diverse employees feel more supported now.

George Langford, Principal Consultant at Interlink Recruitment, who specialises in private practice recruitment explains how the pandemic has forced firms to rethink operations and perhaps even delay strategies to survive. “When it comes to diversity, it begs the question whether firms have had to sidestep plans for equality between their partners and senior managers and focus on revenue for the here and now to get through this difficult period”, says George.

On the flip side, remote working – one of the legacies of the pandemic – can have a positive impact on promotions, encouraging fairness, equality, and improving diversity. Now, performance can be measured on output and quality of work, rather than how many hours spent in the office, or being seen to be busy. For a long time, expands George, the legal profession has been slow to respond to the means of true flexible working. With remote working becoming the new norm, working parents or others who want or need a more flexible working arrangement aren’t prohibited as much from promotion.

Equality and Diversity training is no longer analogous with the poor relative lurking at the back of a family gathering that people shuffle around, trying to politely ignore.

Nonetheless, 45% of women working in law believe that prioritising their work-life balance would jeopardise their success in a firm, while 16% thought that showing commitment to their family would negatively affect their career progression possibilities. It has become more evident in this last year that we all face different challenges in managing the work-life balance, often dictated by our ethnicities and cultures and our home lives. Speaking to Nazia Nawaz, partner and head of contentious probate at Ramsdens Solicitors, she explains how firms who may never previously have considered or offered employees the option of working from home have been forced to embrace this way of working which offers so much flexibility, in particular for working mums or those looking after older relatives, something which is perhaps more common in certain sections of the community.

“There are obviously setbacks too, in particular in the category of new entrants to the profession and I do fear that the pandemic may have widened the longstanding gap in diversity at that level. The impact of this will be felt in the next few years and inevitably, for instance, school children from minority backgrounds are likely to have been so adversely impacted by this pandemic that opportunities for a career in the legal sector will become even more limited for them. I think a lot of work is needed now on improving access to the legal profession for children from minority and disadvantaged backgrounds in order to maintain and improve diversity at that level over the coming years.

“Despite these challenges”, she concludes, “I remain optimistic and hopeful that the legal sector will continue to offer great opportunities to people of all backgrounds.”

Gary Mullen, principal consultant at Interlink Recruitment, recruits Partners and Senior Lawyers across London and tells us that the current situation has taken everyone back in the legal profession and given cause to think about all parts of our careers. “We’ve certainly seen a shift in wants and needs from senior lawyers in the last six months, stemming from several factors, some of which include equality”, he says.

Likewise, the pandemic has given law firms the chance to take stock of their strategies and define where they want to be around subjects such as diversity. “Put it this way”, says Gary, “Those firms who don’t embrace opportunities for all, risk losing talented candidates and staff to competitors who put diversity higher on their agenda.”

Reflection has occurred for some legal professionals, too, and some remain hopeful that remote working will actually push the legal industry in the right,  more diverse, direction. Paula Rhone-Adrien, a leading barrister in the UK has reflected on how the pandemic, lockdown and social distancing has led to a surreal world where she now conducts her work, ensconced at home. Before lockdown hit, travelling to Court every day, she suffered two incidences of racism at the Bar, committed by her fellow barrister colleagues. The incidences occurred in front of other people, and on one of the occasions another barrister actually spoke up on her behalf. At the time she never reported the incidences, just referenced them in passing to family and other colleagues who rolled their eyes and sympathised with her.

And while we want to remain optimistic, we must ensure the next generation aren’t forgotten about.

However, she changed during lockdown, after having the time to reflect. “My life was no longer simply about catching my connecting train or whether I was going to be able to get from Gee street to the Central Family Court in time for my second hearing.  I think this awakening occurred for many at the Bar. I reported the racism I had suffered over my 20 odd years of practice and I believe I was listened to. I also became aware of other stories that were picked up on social media and the national press. It seemed the pandemic, forcing us to lockdown, had actually pressed us to open up about our experiences of discrimination, and society listened. A conversation that we were all too fearful to conduct before, was now being had”, Paula explains.

Equality and Diversity training is no longer analogous with the poor relative lurking at the back of a family gathering that people shuffle around, trying to politely ignore. “Companies (small and large) including law firms and Chambers, are grasping the opportunity, in a way I never imagined, to challenge racism, bias and discrimination. Accomplishing this goal is no easy feat, but the enthusiasm now exists.

“However, the result of our actions rests squarely with all of us. I stayed silent for 20 years, believing my voice would not be heard and fearful of the repercussions of speaking out. I understand now that my voice will be heard, and that I needn’t fear the challenge. This is the lesson that I will continue to spread as one of the just 3.2% of black barristers at the Bar.”

There is work being done. With initiatives like BPP’s Speaker Programme and The University of Law’s Change the World Fund, we could expect the pandemic’s impact to push for further efforts for  D&I in the legal profession. And while we want to remain optimistic, we must ensure the next generation aren’t forgotten about. With homeschooling being implemented nationwide, it may become even more difficult for those from less privileged backgrounds to climb into the legal profession. Nonetheless, change comes from within. Perhaps abolishing the romanticising of the class system will be the ideal first step. With many female lawyers still finding it difficult to manage their work life balance as they are more likely to pick up home duties too, firms expecting the same 9-5 routine being in place and being less understanding if meetings are unexpectedly interrupted by crying children, for example, is not the best way to go. The potential scale of demand for increased flexibility remains significant if we want the gap between male and female lawyers to remain closed.

[1] https://hbr.org/2020/09/dont-let-the-pandemic-set-back-gender-equality

[2] https://communities.lawsociety.org.uk/coronavirus-managing-in-a-recession/will-the-fallout-from-the-pandemic-help-or-hinder-progression-of-gender-diversity-in-the-legal-profession/6001544.article

[3] https://www.chambersstudent.co.uk/where-to-start/newsletter/social-mobility-at-the-bar

1. [4] Survey of 2,000 UK respondents, conducted by TLF November 2020

 

[5] Bar Barometer 2014, a profile of the Bar up to 2011-12

[6] https://www.mckinsey.com/featured-insights/diversity-and-inclusion/diverse-employees-are-struggling-the-most-during-covid-19-heres-how-companies-can-respond