Do female solicitors from Black, Asian and Minority Ethnic backgrounds face gender and race pay gap?

- Ashwinder Gill is a Senior Solicitor at ABV Solicitor’s specialising in Fraud and Complex Crime

The Law Society’s PC Holder’s Survey 2019 shows “a large gender pay gap exists among PC Holders”. The gender pay gap is an all too familiar and depressing theme. It has been over 100 years since the Sex Disqualification (Removal) Act 1919, which enabled women to become lawyers for the first time – how can we have come so far and yet not far enough?

From 2017, it became mandatory for employers with 250 or more employees to report their gender pay gap data. This is a welcome legal requirement, as transparency and accountability are key factors to achieving progress. However, the 250-employee threshold for reporting is too high and does not capture a large number of firms. There is of course nothing stopping firms from voluntarily publishing this data, but many still choose not to do so.

Last year the Black Lives Matter movement gathered global momentum following the heart-breaking killing of George Floyd. It was painful to be confronted, yet again, by the reality of the world we still live in. However, important conversations were re-ignited about the examples of racism, discrimination and inequality that are still embedded into the fabric of our society. The topics of white privilege, white fragility and unconscious bias were being readily discussed in the mainstream media, along with the realisation that the fight for race equality is a collective cause and everyone (no matter their race) can play their part.

In 2020 the Law Society commissioned a report “Race for Inclusion: the experiences of Black, Asian & Minority Ethnic Solicitors”. The findings of the report indicated that the average salary for full-time white solicitors is “25% higher when compared to the salary of Black, Asian and Minority Ethnic solicitors”. Furthermore, “Black African and Caribbean solicitors have the lowest levels of remuneration overall”. It is disheartening to see that in almost every age group and working level “white solicitors still receive a higher salary than Black, Asian and Minority Ethnic solicitors”. The ethnicity pay gap is therefore a very real and current issue, directly effecting our profession.

There is no legal requirement for firms to report their ethnicity pay data. The government ran a consultation for ethnicity pay reporting between 11th October 2018 – 11th January 2019, with the outcome yet to be published. It remains to be seen whether any mandatory requirements will follow. It appears as though, in the political arena, the ethnic pay gap agenda is not progressing in the same way that the gender pay gap agenda is.

The Race for Inclusion report highlighted a number of difficulties solicitors from Black, Asian and Minority Ethnic backgrounds face in their careers – there are too many to consider in one blog. However, a clear theme in the report was the negative impact on career progression and retention, notably “a greater proportion of white males remain in the same firm and sector, whereas Black, Asian and Minority Ethnic females are the group who are most likely to have moved firm or sector, with around half having done so within the six years from 2015 to 2020.” This ties in with the recurring theme in the report of not ‘fitting in’ to the culture, which was particularly evident higher up the career ladder.

Another central issue is the effect of micro-aggressions, exclusion and the experience of othering which “can be as hurtful and demoralising, especially if frequently encountered”. The report makes a strong case for the importance of shifting this culture, to allow for fairer workplace environments. Simply put, words and actions matter. Open discussions on these problems are key to improving understanding, which in turn will improve the experiences of Black, Asian and Minority ethnic solicitors. Diversity and inclusion must go hand in hand.

There is much to be done and much that can be done. We all know how 2020 played out, but surely 2021 has to be the year for hope, progress and change?

I believe there is a need to explore the intersection of race and gender and its impact on equal pay. Specific research into its bearing on solicitors who fall into both categories would shed light on the issue, improve understanding and help achieve progress. An intersectional approach to pay reporting would surely be more meaningful.

Inclusion Allies - the role of allies is crucial and I do not think change will come without allies. There is a need for change in everyday cultures and behaviours. A greater awareness of the dangers of falling into stereotypes and unconscious bias will serve to create a fairer society. The Law Society has published guidance on being an inclusion ally (3 minute read) and I would urge everyone to read it https://www.lawsociety.org.uk/en/topics/ethnic-minority-lawyers/inclusion-allies .

Visibility – inspire those already in the profession, as well as those entering the profession. The need for role models has never been more important. Make your submissions to the “WICL Race Equality Committee: Women of Colour in Criminal Law – The WICL Directory”. The directory aims to shine a spotlight on incredible female criminal practitioners at all stages, from ethnically diverse backgrounds, inspire those coming into the profession, showcase role models for those moving to the next career stage, and create a digital network. So what are you waiting for? Make your submission by following this link (it won’t take long I promise) https://kncommunications.kingsleynapley.co.uk/s/5a5dbc41d3334bd48639cfef6e582ad3dccd412a

Mentoring – the power of mentoring should never be underestimated and is relevant at all stages of your career. WICL have a wonderful and empowering mentoring programme, for more information take a look here https://www.womenincriminallaw.com/mentoring

There is clearly an appetite and need for change. This topic is multi-faceted and cannot be addressed in its entirety in one blog, but it’s a start and that is something that we can all do – start the conversation, keep the momentum going and play our part in effecting change.

Working Families & Shared Parental Leave

- Danielle Reece-Greenhalgh is a Senior Associate at Corker Binning

Recent research by the Trades Union Congress, published in the Independent[1] has confirmed what many of our members know all too well – that the pandemic has had a disproportionately adverse effect on working mothers. The combination of home working and lack of external childcare resources has led to a much higher number of women than men being furloughed from work or having to take on reduced hours.

According to the survey, “41 per cent of working mothers with children under 10 are struggling to find childcare that will allow them to work. Almost half (45 per cent) of those surveyed said they cannot get help from friends or family for childcare.” Whilst 43% of working mothers described having to work from home whilst simultaneously caring for children, only 29% of working fathers faced the same dilemma.

Before the lockdown, WICL were already engaged in exploring the disparity between working mothers and fathers, and specifically in respect of the uptake of Shared Parental Leave (“SPL”). We sought to examine whether the availability of SPL since 2015 had led to a re-balancing of traditional childcare roles as envisaged by those who fought for its introduction.

We launched our survey in May 2020. It did not seek any views on the impact of furlough or the pandemic, and focused solely on the SPL system. Respondents included those with children (who were invited to share their experiences of SPL), and those without (who may wish to take SPL in the future.) 81.2% of those without children stated that they would wish to take SPL in the future once they started a family.

The results demonstrated that the majority of respondents (64.29%) did not take SPL in any form, despite it being available to them, their partner or both. 55.5% put their decision down to financial unviability, and 33% stated that it would have adversely affected their partner’s employment progression. Where SPL was taken, all respondent mothers took more time off work than their partners. All respondents described financial considerations as factoring into their decisions regarding SPL, and only 20% of respondents felt that their and their partners’ employers were supportive of SPL.

Of the respondents who did take SPL (in any form), the majority felt that it was a positive experience, enabling partners to spend more time with their child and benefitting equality in the workplace.

At WICL, we are committed to ensuring that women working in criminal law have every opportunity to progress their careers at the same rate as their male counterparts. Employers within the legal profession should be at the forefront of this. Rather than SPL being a novel or unusual concept which parents (particularly fathers) need to directly request, we would encourage employers to actively encourage its uptake as standard amongst employees, including by agreeing to allow working fathers to take SPL in segments rather than en bloc (which currently is at the discretion of the employer).

The results of our survey, and of the recent TUC investigations, show that women continue to bear the brunt of childcare responsibility. Our survey demonstrates that this is not always by choice, and that many women would welcome the opportunity to balance childcare and work equally with their partners. At WICL, we will continue to advocate for systems which support the equal distribution of childcare without any negative impact upon the careers of working women.

[1] https://www.independent.co.uk/life-style/women/coronavirus-women-childcare-workplace-furlough-tuc-a9702706.html

How can we stop the disproportionate impact of EOH/COH in the Crown Court?

The EOH pilots and plans, now imaginatively retitled ‘Covid Operating Hours’, were recently expanded upon during a Q&A presentation by HMCTS on 23rd September 2020.

When I asked whether HMCTS have recognised the clear discriminatory impact of the EOH/COH model, the response was, “it would be wrong to say no and try and draw a line under it. We recognise this could have different types of impacts on different types of users, including legal professionals. It has been designed in a way by the Working Groups so there are provisions in place for the legal professionals/practitioners to be able to, in advance of a listed hearing date, to request that it be moved where it causes practical issues or issues such as where they have caring responsibilities, childcare responsibilities or it’s not practical because of long distances to travel to get to court. These provisions have been put in place and the experience in Liverpool was that they were helpful, and they worked.

… Part of the assessment is to see how well that works, we’ve been working very closely with the Bar Council in these pilots to understand the impact on individual barristers and solicitors as well. To get a real understanding of how it’s working and what impacts are. From all of that assessment will come a decision on our ability to scale this up to help us recover the caseload and get back to listing cases with shorter waiting times.”

The presentation suggests that a flexible ‘pick and mix’ approach will be available to legal professionals in the Crown Courts and that list offices will accommodate the needs of counsel. This position is incongruous with the actual experience of attempting to obtain any change to listing for counsel’s availability which, in criminal matters, has generally been at the very bottom of the list of considerations the court will take into account. That is why the voices of the 480 people who completed the recent WICL survey are so important. The theory and rhetoric simply do not fit the reality.

Professionals will have to return cases because the court did not accommodate their availability and a delay would impact their lay client. Furthermore, counsel are legitimately fearful of losing future work if they are unable to work outside normal working hours.

The overwhelming majority of respondents to the recent WICL survey oppose the introduction of EOH. The majority of those respondents express legitimate concerns about the impact on their childcare/other caring responsibilities or the impact on their work/life balance and mental health.

Who is keeping a track of or analysing the impact on these people? The mental, emotional and physical strain being put upon them? At present, it seems, no-one.

Who is counting the casualties of the EOH/COH experiment? The carers, most often women, those with disabilities or compromised disproportionately by the potential health risks such as members of the BAME community? Again, at present it seems no-one.

Who is keeping a track of the impact on professionals still being required to attend court in person for hearings where they end up travelling for hours to not even be required to say a single word? Again, this, it appears, is not being monitored. Everything including public health is being sacrificed on the altar of ‘efficiency’ and in the name of ‘clearing the backlog’.

Let us not be seduced by the false promises of HMCTS, who provide assurances of flexible listings and compromise in a system which, even at the best of times, is reluctant to afford flexibility to counsel. WICL has heard from many who fear that EOH will force them to leave their chosen profession. Indeed, an unacceptable number of survey respondents said they would either have to leave or change their work.

One WICL member emailed us explaining how poorly the pilot was working at Liverpool Crown Court in terms of efficiency and commenting that the general feeling was that more time was lost than gained. She summarised as follows:

‘Overall I’d say it was disastrous as anticipated but we hear HMCTS deemed it a great success! No doubt because it simply meant they could say that ‘x’ amount of trials were listed and started.

I feel quite cross about the whole thing from how counsel on circuit have been treated for raising objections to the clear disregard by so many members of circuit for colleagues who would really suffer if EOH became a routine way of working.’

Support us and keep fighting for the focus to be drawn back to the proper funding of and investment in the courts which is necessary to recover the caseload and get back to listing cases with shorter waiting times and doesn’t risk the fate of women, carers, the disabled and BAME community members of the profession being collateral damage. But also lobby your professional bodies, MPs and colleagues. Now is the time for us to come together and fight for the future of the profession, and there is no time to waste.

- Ravinder Saimbhi is a barrister at 33 Bedford Row specialising in criminal law.