Stopping the Brain Drain of Senior Women Lawyers
Harini Iyengar is a barrister who specializes in Employment and Discrimination Law at 11KBW. She argues that positive steps must be taken to address the attrition of senior women lawyers.
Democracy requires a representative judiciary; yet at current rates of progress, it will take 45 years to achieve gender equality in the senior judiciary. As it stands, the legal profession and, in turn the judiciary, is diminished by the brain drain of highly-educated, professionally-qualified, and experienced senior women.
There are 10 times as many women solicitors as barristers, and they constitute an important pool of future female judges. 59% of newly qualified solicitors are female but career tracks still diverge on gender lines. In 2009, the proportion of female associates made up to partner level at the top 30 UK law firms was 27%. Across all practice seniority bands, a lower proportion of women solicitors than men achieve partnership status. Furthermore, in the 2012 round for appointment of QCs, women had a higher success rate than men: 58% compared to 37%. Out of 214 applicants, however, only 40 were female. No appointees were solicitors.
The Report on Judicial Diversity 2010 concluded that “there is no quick fix” and a fundamental shift is required away from the focus on selection processes towards a judicial career that addresses diversity at every stage. A key goal is “increasing diversity within the upper echelons of the legal professions.”
It is commonly believed that women themselves elect to specialise at work, that senior women (married to senior partners or QCs) make personal choices to stay at home, and that these choices are no one else’s business. The evidence, however, suggests that leavers seek more flexible employment outside the law that would require them to pay less for childcare.
Financial reasons are the most common factors cited by all leavers from the Bar, named by 63% of the self-employed leavers. Broken down into race categories, more female than male leavers give financial reasons.
Related to this is the high cost of childcare. Research by the Daycare Trust showed average earnings during 2011 increased by 0.3% but nursery fees had increased by 6%. In fact, the UK has the world’s most expensive childcare. The long hours culture of the legal profession necessitates extensive childcare. It is noteworthy that 66% of barrister mothers have the main responsibility for providing or organising childcare, while the same applies to only 4% of barrister fathers. Out of barrister mothers, 11% have the childcare organised or provided by someone else, compared to 70% of barrister fathers.
Hence, it is not difficult to see that there are significant economic aspects underlying the choice to leave legal practice – decisions which may superficially appear voluntary. Women are rational financial actors, especially when their children are involved. A strategic aim for those who seek a more representative judiciary must be to retain mothers within both legal professions.
In terms of practice focus, numerically more female barristers work in criminal and family law than other specialisms. Publicly funded work is under great strain because of cuts. Income differences between male and female barristers largely result from more women working in these practice areas. Not only are these specialisms among the three with the highest average weekly hours, both career satisfaction and pay are also significantly lower than average for self-employed barristers working mainly in these fields. It is unsurprising, then, that 66% of female leavers had been engaged in publicly funded work.
In my opinion, longstanding employment laws on sex discrimination and equal pay provide protections for senior women lawyers, but political and cultural change would be most effective in helping to reduce the attrition of female lawyers. A clear business case also exists for solicitors’ firms and barristers’ chambers to retain senior women instead of incurring recruitment costs for replacements.
I hence urge the Government and the professions to adopt the following practical steps:
- give tax relief on childcare to employed and self-employed lawyers for nurseries, babysitters, childminders, nannies, afterschool care, au pairs, and school holiday clubs, as acknowledgement of the long hours put in by lawyers;
- retain child benefit as a universal entitlement paid directly to mothers;
- bring into force section 78, Equality Act 2010 requiring larger employers to publish information on the gender pay gap;
- create cultural change in the professions to accord greater tolerance and respect to lawyers working flexibly or part-time;
- create cultural change within solicitors’ firms and companies to encourage more solicitors and employed barristers to apply to be QCs and judges;
- monitor whether lawyers choose and practise specialisms freely or because of sex-based stereotypes;
- do long-term research and analysis of past and future occupations and earnings of senior women lawyers who leave the profession.
The views and opinions expressed in this article are solely those of the author and do not necessarily represent the views and opinions of 11KBW.