Taking steps to improve the gender earnings gap for suppliers can make a positive difference to our and our clients’ own EDI objectives.
Recently, Ingrid McGhee, (Weightmans employment partner), and I participated in a seminar held by the Personal Injuries Bar Association (PIBA) on the gender earnings gap at the personal injury Bar. We attended at the invitation of Judith Ayling KC, (co-chair of PIBA’s EDI committee), who organised the seminar at her chambers, 39 Essex, from which Emily Formby KC, (the current — and first female — chair of PIBA), also hails. Other speakers were Barbara Mills KC, Vice Chair of the Bar Council, Rachel Krys of the Bar Council E&D research team, William Audland KC and Charlotte Reynolds of 12KBW Chambers and Geoff Carr, Director of Clerking at No. 5 Chambers and Chair of the Institute of Barristers’ Clerks.
What do the statistics tell us?
Rachel Krys spoke about the damning statistics: along with crime, personal injury has the worst gender earnings gap (17%) of all the practice areas at the Bar. Family work saw the smallest gap (4%), but a gap nonetheless. In no practice areas do women’s median gross earnings outstrip men’s. Female PI barristers’ median gross earnings across the call bands are around 30% less than men’s. In fact, women earn only 20% of the earnings in this practice area but they represent 28% of the barristers specialising in personal injury.
One of the most surprising statistics is that the discrepancy does not develop partway through a career, (where the typical barriers for female progression such as maternity, caring responsibilities, and retention might be thought to kick in), but is evident from 0-3 years’ call. Less surprisingly, it worsens over time, the starkest difference being at silk level. From 11 years’ call up to 26 years’ call the lack of upward trajectory in earnings is notable for women when compared to their male counterparts. The gap starts early, and it persists.
What can be done by barristers’ chambers?
The Bar Council’s proposed solutions include placing more junior people (women) with the best or most experienced clerks. This struck a chord with me less than a week later when I attended the most recent Female Lawyers’ Breakfast Networking event hosted at Middle Temple Hall by Two Harcourt Buildings, (a criminal set). Head of Chambers Jane Osborne KC spoke of her experiences, followed by Natalia Constantine who praised the strong allyship she and other female members of Chambers encounter from their senior male clerks and the difference made by their considered approach to women returning from maternity leave.
A word of warning was sounded by Rachel Krys about an unconscious bias that might creep in when clerks or chambers promote “future stars at the Bar”, and how there must be care taken to ensure promotion is not simply of those that “look the part” or who mimic or reflect current (often male) leading chambers members.
Rachel noted that experienced clerking may assist some barristers who are prone to excessive caution in their diary management, encouraging the younger barrister to step outside their comfort zone and embrace a bigger case or a new area of practice. Some of the chambers interviewed by the Bar Council notice a difference between men and women and their readiness to accept last-minute instructions, as well as differences in how their calendars are mapped out to accommodate the time required for preparation and completion of instructions. Another possible solution would be to introduce internal time monitoring, (even if only for a limited period), to guard against under-estimation of time taken to do work, (a subject close to solicitors’ hearts also!), leading to under-billing.
Ingrid McGhee discussed how, as with many newly qualified solicitors, those new to the Bar may challenge the expectation that to succeed in the profession one must be willing to work around the clock and to dispense with any hope of switching off fully while on annual leave. I suspect there is probably a broader conversation to be had about how we as solicitors instruct counsel, and to what extent we are contributing to the inability of some to achieve an acceptable work-life balance, which may in turn be driving decisions by certain barristers to take on less work, and others to take on more, possibly based on differing attitudes to risk and diary management.
Geoff Carr discussed how good clerking and practice management involving regular individual reviews, along with the collection and analysis of data, can help to address the situation. However, he emphasised that this is not just a clerking issue.
William Audland KC and Charlotte Reynolds talked about the strides 12KBW have made in gathering and interrogating data on the earnings of their fellow members of chambers.
Charlotte identified several issues more under the control of individual barristers that impact on earnings, such as the type of cases, hours worked, existence of pro bono work, marketing efforts and quality of work. Other factors less under their control are access to marketing opportunities, being put forward for work, opportunities to be led, as well as support by senior members.
There is not a great deal that we solicitors can do regarding most of the preceding issues, but one Charlotte mentioned stands out: the attitudes and briefing practices of clients/solicitors, and this is what the rest of this article will explore. What might be behind the attitudes/practices driving the discrepancy?
The role of bias — unconscious or otherwise
Ingrid explained the necessity of confronting gender bias. It is not pleasant to consider ourselves to be biased but we all are, whether we like to admit it or not. Our biases are not necessarily held with any malice or ill intent, rather, it is the way our brains are organised. Bias is natural, it helps the brain to focus or make quick decisions relying on instinct in times of crisis. On the other hand, it can adversely affect our decision-making skills and judgment, influencing recruitment, promotion, or career progression for employees or, as here, the selection of individual suppliers. Unconscious biases are judgments or beliefs built up over a lifetime and due to our environment, upbringing, family, or lived experiences. Unconscious bias is also known as implicit bias, which essentially involves encompassing favourable and unfavourable assessments, activated involuntarily and without an individual’s awareness or intentional control. These biases can also be hidden or covered for social or political correctness. Of course, some bias is explicit, but that tends to be easier to identify and to challenge, such as in the case of sexism or misogyny. Unconscious bias has become a hotter topic in recent years, with many organisations both undertaking and producing training on the effects of unconscious bias. However, we have yet to see the drastic shift in people proactively challenging and confronting their own unconscious bias. Ingrid noted that it may be that a client unconsciously thinks a male barrister will be better able to deal with a complex or intense case, and such attitudes are not confined to men. This can be due to an individual’s own perception of traditional roles of males and females, but we also need to consider the impact media and representation has on building the internal narrative feeding into our unconscious bias.
What can solicitors and their clients do about attitudes and briefing practices?
This is an area where we can make a difference. How can we do so? That is probably beyond the scope of this article, but four actions would represent a good start:
- Spread awareness of the issue (this article being my initial contribution).
- Be prepared to confront our own internal biases.
- Have conversations with our colleagues regarding their briefing practices, challenging attitudes where appropriate.
- Have those conversations with our clients, whether they be insurance companies or public bodies, who are after all the ultimate payors.
Ingrid suggested asking ourselves questions to understand why we are selecting a particular barrister or critically analysing what we see as essential criteria for selection. The reality is that we are spoilt for choice when it comes to quality barristers in our practice area, but how often do we fall into habits borne of familiarity when selecting counsel? Of course, the level of influence solicitors have over choice of counsel can vary significantly from client to client. Furthermore, many clients use counsel panels which reduces the pool of barristers, but one would hope that they will ensure that such panels are not male-dominated and, if they are, can we engage in the conversation around that?
The type of work we do will feed into where we can make the most difference. As a catastrophic injury practitioner, I can probably do less personally these days to assist those at the beginning of their career, but I will have colleagues who can. 12KBW’s working theory is that the 0-3 years’ call-band discrepancy is due to more low-paid work being done, such as small claims, or that women are doing fast-track work for longer. Solicitors and their clients can do much to rectify this. For my part, I can ensure that I am recommending stellar women as well as superlative men for the instructions at senior junior/silk level which my cases usually require.
Quite apart from the moral imperative, taking steps to improve the gender earnings gap for suppliers (such as barristers’ chambers) can make a positive difference to our and our clients’ own EDI objectives.
Ingrid noted that at Weightmans we are seeing a steady reduction in our gender-earnings gap through the action that we are taking, such as setting targets, promoting engagement and flexible work policies, and having transparent reward structures. It is all very well talking about how we can assist those in the other branch of the legal profession, but law firms need to recognise that our own work is far from done – we have a long way to go, despite the vast improvement in recent years in equality of representation. This is true of some of our clients as well, indeed, a recent Insurance Post article revealed that most insurance providers pay women around 20% less than their male counterparts. These insurers, like law firms, are busy gathering and analysing data in order to improve the gender earnings gap. It was clear from the PIBA seminar that some insurers retain data regarding the gender breakdown of counsel instructions. It would be interesting to see that data and for it to be put to good use, perhaps by way of a joint initiative between insurers and their suppliers, with the assistance of solicitors.
Ultimately, it will not be lost on lawyers that it is somewhat ironic that there remains such earnings inequality between the sexes in both branches of the very profession that is responsible for advising on and advocating for equality. Where we see opportunities to help each other, we should grasp them.
Catherine specialises in the defence of motor, public and employer’s liability claims involving brain, spinal, amputation, fatal and complex orthopaedic injuries, along with injuries leading to the development of pain disorders.
