Why Is Female Partner Diversity In The Legal Profession Still Failing And What Can Law Firms Do About It?

• Published date: 04 November 2021
• Subject Matter: Corporate/Commercial Law, Employment and HR, Discrimination, Disability & Sexual Harassment, Diversity, Equity & Inclusion
• Law Firm: Brahams Dutt Badrick French LLP
• Author: Rebecca Rubin

According to research, the majority of London law firms still have an overwhelmingly male-dominated partnership. Women have represented more than 60% of entrants into the solicitor profession since 1990. There has been a huge push in diversity and inclusion initiatives within law firms in recent years. So why is female partnership diversity still failing?

The Lawyer cited research which revealed that out of the 50 top law firms in London, 45 still have lower female representation at partnership level than the industry benchmark of 30 per cent. Of the five firms who had reached the industry benchmark, three had female partnership representation of 30 per cent, one of 31 per cent and one of 44 per cent. The overall average of female partnership amongst the top 50 city firms was 23 per cent.

One explanation may be that the solutions currently being pursued under diversity and inclusion initiatives will take time to have a meaningful impact, in contrast to more interventionist solutions.

Diversity and inclusion initiatives are the "soft arm" of lawful positive action. These initiatives (which are lawful under section 158 of the Equality Act 2010) include women only networks, women only training programs, outreach programs and mentoring schemes.

By their very nature, such initiatives can only achieve so much success in a short period of time. They rely on the winning of hearts and minds, the shifting of entrenched attitudes and the slow redress of wider social injustices that reach far beyond the confines of the employment market.

Faster and more direct action is permitted under the positive action provision set out at section 159 of the Equality Act 2010.

This provision can be used in relatively limited circumstances, but it allows employers during recruitment and promotion processes to take positive action towards women who are disproportionality underrepresented. It can be used in recruitment and promotion in relation to a "tie-breaker". Where two or more candidates are of "equal merit" an employer may take into consideration whether one is from a group that is disproportionately under-represented or disadvantaged within the workforce.

Allowing positive action in circumstances where candidates are "of equal merit" raises a whole host of additional questions and concerns for employers. How can employers make this assessment safely? How can they avoid making subjective assessments of...