Every job in the UK should be advertised as available for flexible working. This was proposed recently by the Equality and Human Rights Commission (EHRC): one of several suggestions designed to accelerate the glacial progress of the much-publicised gender pay gap.
The watchdog argued that making flexible hours available to every job applicant would help overcome gender pay disparities and assist women with families.
Efforts have been made by both law firms and government to make flexible working available, but their impact has been minimal. Most law firms now claim to have a flexible working policy in place, but too often it is little more than window-dressing. The reality may mean a day or two a month working from home.
Even for those firms which are more generous, flexible working is usually capped at one day a week, and there is often a qualifying period before it applies. This is flexible working in the loosest of terms.
Barristers have also had it tough. Although cynics might argue that most barristers can already work flexibly as they are self-employed and can therefore determine how much (and how often) they work, in practice this is far from true. The reality was brought home by the news in May that late-night and early morning court sittings would be trialled in a pilot by the Ministry of Justice. This plan received widespread criticism from across the legal sector (and rightly so), not least because it would further limit opportunities for women barristers with childcare needs. In response to pressure, the pilot has now been postponed to February 2018 until there is a ‘robust, independent’ evaluation system in place.
Many reasons are put forward for not extending flexibility further within the profession, usually focusing on the needs of the business and client demands. Yet there are solutions to most challenges.
The net effect of a lack of flexibility is a notable gender disparity in staff retention. The ratio of male to female lawyers shifts as families make decisions on how to combine working life with parental responsibilities; and often women leave because they cannot achieve a reasonable balance.
The gender pay gap is exacerbated because, in seeking jobs that provide flexibility many women take positions that are below their level of skills, experience and knowledge. Or, when looking to return after a career break, they find it very difficult to go back at the same level.
This also affects promotion opportunities and fair representation of women at partnership level. Few City law firms can boast female partnership figures above 25%, and the number above 30% can be counted on the fingers of one hand. Although some may say this is silent discrimination at work, many firms are working hard to improve these ratios. However, with fewer women working at more senior levels due to a lack of flexibility, law firms are inhibited by a smaller talent pool from which to promote and a pool that is not gender-balanced.
Genuine flexible working allows talented female lawyers to remain in practice: it is a key differentiator in attracting and retaining the most talented. The increasing use of cloud-based IT systems enables lawyers to work remotely and securely, while mobile, meeting and video technology allow instant communication with colleagues and clients.
Many industries have already embraced significant flexibility and remote working, so concerns that clients object to their lawyers working in this way are rarely valid.
Making the offer of flexible hours available to every lawyer must be part of the profession’s future. In seeking to build a profession that more accurately reflects the diversity and demographics of the public it serves, we should be bold in embracing new ways of working. Putting the happiness of lawyers at the forefront of every firm should not be seen as radical, but rather a sound objective that will help to secure a pipeline of talent and continued business growth.
Published in Law Society Gazette – 30 October 2017