Progress towards closing the gender pay gap in law firms could be yet another unforeseen casualty of the global coronavirus pandemic. With the suspension of gender pay gap reporting in 2020, the equal pay claim brought against Asda in the Supreme Court this month – the largest ever in the private sector – has shone a welcome spotlight back onto the issue of pay disparity.

It is already clear that across all sectors women are losing out as families try to juggle childcare and work. In the legal sector the consequences of that struggle on gender pay gaps may only be felt next year, as firms assess the performance and contribution of lawyers in determining promotions, pay and bonuses.

The UK government suspended gender pay gap reporting legislation this year, just a week before the reporting deadline. While many businesses, including law firms, will have welcomed this move given the myriad of matters they were dealing with in April, this brings with it the danger that law firms will let their efforts towards gender parity slide just as they need to reinforce them.

Last year The Times reviewed the gender pay gaps at the 10 largest law firms and found that they were worse than in several other male-dominated sectors. This year several magic circle firms voluntarily published their 2019 gender pay gap data, despite the suspension of reporting requirements. Whilst there were some improvements compared to 2018 figures, the mean gender gap, in general, remains higher than the national average.

Of course, a large gender pay gap does not automatically mean that female associates and partners are not receiving equal pay to their male peers. However, it does evidence what we already know; that City law firms have fewer women than men in higher paid senior associate roles and in partnership.

If firms are therefore committed to making a meaningful change to their gender pay gap when they come to report in 2021, it is abundantly clear that this can only be achieved through improving gender equity at senior levels of the firm. While the issues relevant to improving gender equity have not changed as a result of the pandemic, certain issues warrant renewed focus as a result of the particular challenges arising out of the period of lockdown and ongoing remote working, including:

  • recognising and addressing structural issues which may have a greater impact on women and the value attributed to their role, including the impact of prioritising billing figures when making promotion and bonus decisions, rather than looking at other measurable contributions, including knowledge management, team building and individual support.
  • where financial metrics will unquestionably continue to be a key factor in measuring performance, ensuring a sufficiently long look-back period to ensure that figures are not skewed by the challenging recent period (particularly where this may relate to child-care related issues).
  • ensuring work and business development opportunities are distributed evenly, as with remote working there is a greater danger of siloed working; partners should be reminded to spread work and opportunities across the team.
  • Being doubly mindful of unconscious bias: this includes well-meaning biases that might lead partners to pre-suppose that a lawyer with children at home might not be the right person to lead on a new case or transaction.

With the pandemic said to have the potential to set women's economic progress back half a century, the Asda case is a timely reminder, if we needed one, of the importance of tackling the issue of gender pay disparity.

And while the likelihood of a rise in equal pay claims brought by lawyers appears unlikely where firms are able to rely on non-discriminatory material factors (for example differentiating practice areas) as the basis for pay differential, sex discrimination cases remain a very real risk for firms who do not actively address the underlying reasons for gender disparity amongst senior lawyers.

In addition to recognising and addressing the challenges posed by the pandemic, firms should now take advantage of the unique opportunity to shift the gender dial following the legal sector's wholesale shift to remote working during the pandemic.

Where the most common reason cited for pay disparity in the legal profession is the traditionally inflexible nature of law firms in accommodating female lawyers' child-caring responsibilities, firms now have the chance to permanently change that status quo by cementing flexible ways of working post lock-down alongside reviewing their approaches to performance and remuneration structures.

Anna Birtwistle is a partner and Hannah Taylor an associate at Farrer & Co.

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