The presence penalty in law
The presence penalty describes the career opportunities you can miss when you are less visible at work. Clear work allocation and support from senior colleagues matter as much as the flexibility policy.
Most lawyers recognise it long before they have a name for it.
Where does the penalty actually come from?
Proximity bias. Work gets allocated by whoever is standing nearby when it lands.
A partner takes a call, needs someone on it this afternoon, and looks up. The person at the desk outside gets the brief. The person working from home on their compressed week does not, and never knows the brief existed. Repeat that across a year and two lawyers with identical ability have very different CVs.
The second mechanism is sponsorship. Mentors give advice, and advice can happen over a video call. Sponsors put your name forward in rooms you are not in, and that tends to follow familiarity. Familiarity gets built in hallways, over coffee, and by being the one who is still around at seven when something goes wrong.
Neither mechanism is a judgement about your work. That is what makes it hard to argue with, and hard to fix by simply working harder.
Is the penalty real, or is it a perception problem?
Both, and that is the difficulty.
A flexibility policy alone does not tell you how a firm allocates work or assesses progression. Ask how performance will be measured and how lawyers working different schedules will hear about opportunities.
This is especially relevant when planning a return from parental leave or fitting work around caring responsibilities. The examples here illustrate possible workplace dynamics; they do not establish that a particular employer has acted unlawfully.
Does asking for flexibility make it worse?
Eligible national-system employees have a statutory right to request flexible work. Taking adverse action because someone exercises a workplace right can be unlawful. Whether a particular decision breaches the law depends on the facts and the protections that apply.
Alongside the formal request, discuss how work allocation and progression will be assessed. If you are concerned about discrimination or adverse action, get advice on your own circumstances rather than assuming every career disadvantage has the same legal explanation.
That is a fair thing to weigh. It is also worth naming plainly: if the honest answer is that a flexible arrangement will cost you the career you want at this firm, the problem is the firm’s operating model, not your request.
Flexible work rights for lawyers →
Practising law around a family →Virtual offices for lawyers →
What do lawyers actually do about it?
There are three routes, and lawyers take all three. None of these is obviously right. Which one fits depends on how much of your work already comes to you by name, and how much still comes down the corridor.
Negotiate inside the firm.
Works best when you can make presence less load-bearing: fixed anchor days, explicit work-allocation rules, a named sponsor. Hardest to sustain if the firm’s culture has not moved with its policy.
Negotiating flexibility on return from parental leaveMove to a firm whose model already fits.
Real, but you are trading one set of unknowns for another, and the penalty follows the model, not the letterhead.
Go independent.
Independent practice can give you more control over the work you accept. It also brings responsibility for finding clients, meeting deadlines and running the business. It does not guarantee flexibility or remove professional obligations.
How lawyers actually solve flexibility
What changes when the work is yours?
For lawyers who go independent, the presence penalty stops being the question. Being in the room matters when someone else decides what you work on. When you hold the client relationship, visibility is something you build with clients and referrers, not something you have to be physically present to collect.
Helena runs her practice from Clarence in Brisbane. Her clients meet her in a CBD office with a staffed reception. Her filing gets done whether or not she is there. She picks her daughter up.
“I decided to open my own firm. She was three months old, and I went out on my own. Nothing to lose, only gain.”
Helena Mrmos, Principal Lawyer, Mozaik Lawyers, Brisbane
General information only, not legal or career advice. Your position depends on your own employment arrangements.
Jurisdiction and legal sources
This page provides general information, not legal advice. It does not consider your circumstances. Check the current law and obtain advice from a qualified professional before making decisions about your rights or practice.
“Presence penalty” is a descriptive career term, not a separate statutory entitlement or legal test. Whether treatment is unlawful depends on the conduct, reasons and legislation that apply.
The Fair Work Act request process applies to eligible national-system employees. Coverage depends on the employer and employment relationship, not simply the state where you work. Some public-sector employees and some Western Australian businesses operate under state systems. Awards, agreements and state laws may provide additional rights.
National employment rules
Discrimination protections can also apply, depending on the facts. These are relevant federal and NSW, Victorian and Queensland sources, not a complete list for every state or territory.
Discrimination legislation
Sources checked 11 September 2026. Laws, regulator requirements and commercial terms can change. The links above are selected sources for this page, not an exhaustive compliance checklist.