When Fiona Fitzgerald, chair of the Association of Women Solicitors, was preparing to launch the joint campaign with the Law Society on equal pay, she first checked her own firm’s record.

‘I thought that there is no point in me preaching without first making sure we weren’t falling into the trap,’ says Fitzgerald, a partner with national firm Colemans-CTTS. ‘We talked to a number of recruitment consultants to get average pay levels and then we looked at our male and female solicitors to make sure everyone was in the correct bracket. We found a couple of people who weren’t and moved them up.

‘Doing an equal pay audit is neither time-consuming nor expensive – it is something firms need to do every year without fail.’

That is the message she is keen to get across to all practices as part of the campaign, launched after the Law Society’s Strategic Research Unit pay survey found that male solicitors were paid on average £60,000 a year while women were paid £41,000 – a pay gap of 32%.

After allowing for variables such as area of practice, career breaks, firm size and location, the overall gap was still there at just under 8%.

Fitzgerald says: ‘We have been aware of the problem for the past couple of years and we anticipated that the survey results would be this bad. So we decided to join forces with the Law Society to highlight the need for all of us to look at our businesses to ensure we are not falling into the trap, to investigate why it is happening and what we can do about it.’ She says there may be a number of reasons for the disparity: women are not as pushy in asking for higher salaries; women tend to go into sectors such as family and criminal law rather than higher-paid corporate law; women have only recently come into the profession in such large numbers; and more women take career breaks to bring up families.

‘But the honest answer is we are not 100% sure why,’ she says. This has prompted the association to survey all its 17,700 members to identify why there is still a gender-based pay gap and how issues such as performance targets fit in with salary packages (see [2008] Gazette, 21 August, 2).

According to the Law Society’s Stephen Ward, communications director and the Society’s management diversity champion, the important lesson to take from the survey is that women tend to earn less than men because of the different way they progress through the profession, rather than because of inequalities within particular firms. ‘We need to understand the causes of the different career progression and if there are things we can do to address it – or not,’ he says.

At present, pay gaps are not a regulatory issue. While the Solicitors Regulation Authority sets the minimum salary for trainees, a spokesman says it does not regulate pay as that would be illegal, so pay gaps are not an issue for the body to address.

Earlier this summer the government published a single Equality Bill, which is intended, among other legislative housekeeping, to tackle the pay gap (see [2008] Gazette, July 24, 10). The government is proposing to ban secrecy clauses in contracts that prevent employees from talking about how much they earn. It is also investigating the effectiveness of equal pay audits.

Fitzgerald says she has been challenging managing partners to carry out equal pay audits, which she warns may have to be made compulsory if the situation doesn’t improve. ‘As I said at our AGM,’ she adds, ‘isn’t it embarrassing that we, who are bringing equal pay claims for local authority workers, suffer from exactly the same situation ourselves?’

However, while equality and diversity are high on everyone’s agenda, business leaders such as Sir Alan Sugar have warned that equal opportunity laws can be counter-productive, putting off employers from taking on women.

The Law Society acknowledges the problem. Ward says: ‘You can create perverse incentives. We are all aware of egregious stories about men who won’t employ women of child-bearing age. That is why this campaign has to be very collaborative in finding ways forward. However, the argument about maternity rights discouraging employers from taking on women is already being eroded, as men get paternity rights and also seek different ways of working.’

At magic circle firm Allen & Overy, retaining and promoting women are key issues. HR associate director Sasha Hardman says there is ‘no scope’ for any differences in salary by gender because their lawyers, from trainees up to senior associates, are paid set salaries based on PQE.

The firm reviews salaries of other staff to check there are no unintended pay differences. ‘We also track the gender split at each grade,’ she says. ‘Around 60% of our trainee intake is female and around 20% of partners are female – this is an area we are focusing on to ensure that a much higher percentage of women are promoted to the partnership.’

At Allen & Overy’s global partners’ conference in May, A&O held a separate drinks reception for female partners and directors/associates to discuss ways forward. ‘There will be a lot more happening around this issue over the next year – we know we haven’t totally cracked it yet,’ Hardman says.

One of those who has made it to the top is Jane Lister, managing partner of south-west firm Foot Anstey for the past 11 years. Half of the firm’s lawyers are women, who make up 22% of partners and 14% of equity partners. One in seven of the latest partnership promotions were women.

‘We have been doing equal pay audits for many years,’ says Lister. ‘Occasionally they have thrown up anomalies which are usually quite inadvertent. For instance, someone has gone from full-time to part-time and the pro-rata rate has got out of kilter. However, once you are in the habit of treating people equally, you tend to do it automatically.’

She says that, at some point, women will take career breaks and that can mean gaps where there are not women in particular positions, which is perhaps where the pay differential arises. ‘I don’t think it is due to firms consciously discriminating – the more senior women wouldn’t allow it,’ she adds.

Family law barrister Melissa Lesson, a partner with London firm Mishcon de Reya, was singled out as one of Management Today’s ‘35 women under 35’ list of high achievers.

She says she has not found pay to be an issue, though she admits: ‘I have no idea how what I earn compares with someone my age, being a partner in this firm. It would be interesting to know.’ She does not believe there is a glass ceiling, though she says that the number of women does fall away at more senior levels because of the difficulty of juggling family and career. She says the preoccupation among her contemporaries is ‘how to be superwoman. I don’t have children, but I see how my colleagues have to juggle and it is very hard. You are doing a very demanding job where the hours are unpredictable, and you need a huge amount of support to do it’.

Recruitment specialist Lucinda Brown is head of legal at CRS Group, which recruits for both in-house and private practice from five years PQE to partner level. She says CRS does not see any gender pay gaps. ‘The generation of women who have graduated since 2000 and are now between 30 and 35 work hard, know what they want and wouldn’t let anyone be paid more than them,’ she says.

One area where the pay gap is less pronounced, according to the pay survey, is in the public sector. The Law Society says it might have something to learn from this. ‘It may be to do with return-to-work policies and less fixed career paths,’ says Ward. ‘In private practice, if you are not a partner by 38 you aren’t going to make it, and that is hard for women who want to take time out to bring up children.’

Pay is currently an issue for solicitors in local government because some authorities have downgraded salaries. However, Suzanne Bond, chair of Solicitors in Local Government and senior social services lawyer at the London Borough of Hillingdon, says gender pay inequality is not an issue because of the way salaries are graded. Local government is good on equality and diversity, she says, and it attracts women solicitors because of its family-friendly policies.

One of the biggest public sector employers is the Crown Prosecution Service (CPS) with 2,991 lawyers, 1,374 of whom are women. Mark Summerfield, CPS deputy director for pay and reward, says it monitors pay differences. ‘The equal pay review undertaken last year did not identify any statistically significant pay gaps which required action,’ he says.

One concern for Sue Nelson, council member of the City of Westminster and a legal training consultant, is that the situation for women may get worse if the current market downturn is prolonged.

Some research suggests that when the number of lawyers is increasing and the pie is getting bigger, it is easier for women to get their fair share of it, but when the market contracts, the opposite applies. Nelson believes the profession’s equality and diversity arrangements need to be sensitised to this.

Reports on the pay survey in the Gazette prompted a stream of letters. One seven-year qualified commercial solicitor said she had started the equal pay process after discovering that less-qualified male colleagues were being paid more than her because they had ‘negotiated harder’.

Nelson says: ‘For a lawyer to have to sue her own employers because they are not being fair goes right to the heart of expectations of how law firms should behave. It is shocking that law firms advise clients to avoid claims by running equal pay audits, yet do not do it themselves. It is a case of "physician, heal thyself".’

Inequalities for young lawyersGrace Brass, who qualifies this month, says the Law Society’s research into gender and race pay gaps comes as a ‘stark reminder’ to young solicitors that equality in pay and career progression is not yet a reality.

Brass, who trained at Cambridgeshire high-street firm Adlams Solicitors, is council member for the Junior Lawyers Division (JLD) responsible for trainees and LPC students.

Many young women and ethnic minority lawyers take it for granted, she says, that ‘having slogged their way through university and then near bankrupted themselves studying the LPC, they will be treated the same as anybody else when it comes to the final pay-off – the holy grail of the training contract and the newly qualified position. But that is not yet a reality’.

She says female trainees have called the JLD helpline after finding out they are being paid substantially less then their male counterparts. ‘They are in a particularly difficult position – unable to complain for fear of losing their contract or affecting their future career,’ Brass says. ‘Unhappy at work, they often leave the firm upon qualification.’

She says inequality is an issue for every member of the profession. ‘We are all lawyers fighting for other people’s rights and yet we don’t seem to fight for our own. This can be very frustrating for those coming into law with an open outlook and high expectations.’

The JLD has backed calls for firms and employers to make pay open and transparent. Brass says: ‘The pay-gap issue also builds into one of the current JLD campaigns of the "two-year wobble". This has come from anecdotal evidence of solicitors leaving the profession from around two years qualified because they do not feel that they are being valued by their employer or by the profession. It is unsurprising that valuable, able and high-calibre members of the profession are leaving if they cannot trust those that employ them to pay them fairly.’

Why women are not at the top Just three women made it on to a recent Sunday Times list of the 50 top-earning lawyers: Frances Murphy (left), the first woman head of corporate at Slaughter and May, (£2.3m), criminal barrister Clare Montgomery QC (£1.3m) and divorce specialist Fiona Shackleton (£1m).

Murphy is not surprised that there were only three women on the list. ‘Most of those on the list are in their mid-40s upwards,’ she says. ‘When I joined the firm in the early 1980s there were very few women in the profession, and I don’t think there were any women partners at the major firms at all. It takes time for women to reach the top ranks. In 20 years I think the position will look very different.

‘Will it ever get to parity? Maybe not, because I think you may still see more women than men choosing to step out of a profession which can be overly demanding on people’s home lives.’

When it comes to pay, she doesn’t believe any of the top 10 or 20 City firms would pay women less than men. ‘I have never been paid less than my male peers throughout my 27 years at Slaughters,’ she says. ‘As part of a lockstep partnership, there is no question of discrimination between men and women.

‘When we work out the salaries for our lawyers, which is twice a year, gender is not a factor in deciding how much they are paid. It is simply a question of how good a lawyer they are.’

She says that women who decide to step out of the frontline as a way of combining career and family make the decision knowing it may have an impact on their salary. ‘If you paid women – or men – who wanted fixed or regular hours the same as women or men who worked all hours, that would be unfair,’ she says. ‘I don’t think women want special treatment, they just want to be treated fairly.

‘There is not one single right answer to this conundrum. I have an 11-year-old son and most of my female partners have children, but I don’t think any of us would pretend we know what will work for everyone.

‘The interesting question to me is: how do you help women who are maybe in their 30s, who have taken several years off while their children are small, and who now want to come back to work?’

Minority pay gapsThe Law Society’s pay survey also highlighted the gap between different ethnic groups, with white solicitors earning on average £50,000 a year compared with £40,000 for black and minority ethnic (BME) solicitors – a gap of 20%.

After adjustments for gender, seniority, firm size, region, hours worked and experience, BME solicitors still earned on average 17% less than white solicitors.

The Law Society launched a BME Forum in July, which will bring together the leaders of the Black Solicitors Network, Association of Muslim Lawyers, British Turkish Lawyers Society, Society of Asian Lawyers, British Nigerian Lawyers Forum and the newly formed Society of Bangladeshi Solicitors.

Jerry Garvey, the Society’s membership development executive specialising in race and religion, says he hopes one of the projects the forum will take forward will be producing a more structured strategy towards tackling the pay gap. ‘It is clear we need to do something about it because, as it stands, it is not acceptable,’ he says.

Grania Langdon-Down is a freelance journalist