Bar sustainability: zero tolerance

Recent surveys by the Bar Council and the International Bar Association have reported that harassment and bullying at the Bar (and the wider legal profession internationally) were not only prevalent, but on the rise. With retention rates of women at the Bar falling dramatically at around five and ten years’ call, these findings were of particular concern to the Association of Women Barristers (AWB).

In order to ascertain the nature and extent of the problem, the AWB convened two roundtable discussion groups to ascertain how bullying and harassment was affecting the profession and to consider what could be done about it. The findings, published in a report at the end of 2019, were eye-opening to such an extent that they received widespread attention in the mainstream media (In the Age of Us Too: Moving Towards a Zero-Tolerance Attitude to Harassment and Bullying at the Bar: bit.ly/3aEljzW). It became clear that a macho culture was still alive and well in the profession and that under-represented groups at the Bar, such as women and those from Black, Asian and Minority Ethnic (BAME) backgrounds, were disproportionately affected by harassment, bullying, and other inappropriate behaviours.

The report’s key findings

• Power imbalances created vulnerability (eg during pupillage or on return to work following maternity leave) and inflexible working practices created stress and impacted on individual wellbeing: Flexible clerking practices were needed, particularly for those returning from career breaks or juggling family commitments. While many chambers have adopted family-friendly policies, there was still no consistency as to what could be offered.
• Unequal treatment around the distribution of work and inequitable briefing – for example overlooking women barristers for leading briefs and more lucrative work: Assumptions were often made that female barristers were best suited to family or criminal cases. Time and again women were encouraged towards, and in reality, siphoned off to undertake cases involving rape and serious sexual offences, while male colleagues were rewarded with higher paid and more varied work, which was much more useful to support applications for silk.
• Bullying and inappropriate behaviour by barristers professionally and socially: Examples included instances of female counsel being ‘talked over’ and excluded from case discussions in robing rooms. There were also reports of open discussions taking place amongst male barristers at court rating the attractiveness of female colleagues.
• The existence of a widespread culture of fear around ‘calling out’ or reporting incidents of bullying and harassment: Many barristers said that they would not ‘call out’ bad behaviour either at the time or through formal channels due to the delicacies of self-employment, reputational damage and the sensitivity of client-counsel relations and client confidence.
• Poor facilities available for women and non-binary people at court centres resulted in feelings of exclusion: One barrister said that she had asked for a private room to express breast milk at court. She was shown to a conference room – only to find that the door did not lock. Following another such incident in the Rolls Building last November, when a barrister was told she could hire a private conference room for £150 when she asked for a private space to extract breast-milk, HM Courts & Tribunals Service published guidance to support breast-feeding and nursing mothers.

Quick wins: measures to take today

While we recognise that some of the changes required are necessarily at a regulatory or institutional level, everyone has a role to play. Change is long overdue and essential if, as the Chair of the Bar, Amanda Pinto QC, commented in the preface of the AWB report, we are to build ‘a better, more inclusive and sustainable profession’.

We offer the following suggestions for some quick wins where individuals can help to make a difference:

1. Organise a training session to raise awareness about the effects of bullying and harassment and other damaging behaviours, such as unconscious bias: The AWB has recently worked with Raggi Kotak, a barrister who trains in process work, a facilitation method for conflict and change (read Raggi’s article in the January 2020 issue of Counsel).

2. Lobby chambers to adopt more flexible policies around maternity and parental leave: For example, the introduction of a freeze on flat rate rent arrangements/reduced rent or offering short-term interest-free loans for those returning after extended career breaks.

3. Consider investing in coaching to boost confidence, mindset and resilience: Training can help us identify whether our words, thoughts and behaviour are supporting positive outcomes and enable us to cope with the effects of damaging behaviours. Nikki Alderson has recently delivered empowerment coaching workshops for female barristers and worked with organisations like the AWB, Women In Criminal Law, The Midland Circuit Women’s Forum, and Women in the Law UK.

4. Become a male champion or offer to mentor a more junior barrister: The AWB recently organised a successful mentoring scheme which also served to underpin its #HeForSheAtTheBar Twitter campaign.

5. Challenge the stigma around mental health: Make colleagues aware of the resources available to help barristers, such as Law Care, Wellbeing at the Bar, and the re-launched confidential helpline supporting barristers facing inappropriate or discriminatory behaviour (0800 169 2040).

6. Promote Talk To Spot: The Bar Council’s online tool allows barristers to record and, if they want, report inappropriate behaviour, bullying, harassment and discrimination at the Bar and Bench. Potential users can rest assured that they retain sole control of any information recorded on Spot. 

The impact of inappropriate behaviour on retention

One of the co-authors of this article, Nikki Alderson, has had first-hand experience about how inappropriate behaviours and unsupportive working practices can adversely impact upon female barristers, particularly those with young families.

Nikki has written about her experiences in her book Raising the Bar and told Sky News in January 2020 how she received a last-minute ‘return’ in a serious and complex sexual abuse case when she was seven months pregnant with her third child. The papers, more than two feet deep, the pink brief ribbon barely holding them together due to their sheer weight and volume, were couriered to her home address late after close of business. The brief contained no indictment, no opening note, no case summary and there were several complainant DVD recordings of evidence to view. Her husband worked away, her other children were just 1 and 2.5 years old and she had to be ready for a clean start the next morning in a distant court.

She also recalled how her request for an ‘eased back in’ return to work, having been out of court for 12 months on maternity leave, was interpreted as a free-for-all on any case, anytime, anywhere. Within 48 hours of her return, she was given the following briefs: a wounding with intent case where the defendant had broken a glass and twisted it into the face of the complainant who consequently suffered life-changing injuries; a murder trial; and a rape trial where the client was just 13 years old.

As a pupil Nikki was told by a judge that ‘your argument is worse than that of a child in a school playground’. Senior practitioners present at the time offered a supportive ear and remarked specifically about the unfairness of the comment, and agreed it had been designed to humiliate. However, the judge continued to behave in this way towards Nikki unchallenged throughout her 16 years practising at the Bar.

Following on from these experiences, Nikki set up her coaching practice to empower female lawyers and support the retention of female talent. Finding strategies to deal with inappropriate behaviour and maintaining healthy boundaries around work/life balance are key.

USEFUL READING

In the Age of Us Too: Moving Towards A Zero-Tolerance Attitude to Harassment and Bullying at the Bar: a Report on the Association of Women Barristers’ Roundtable on Harassment and Bullying with Recommendations, Lynne Townley and HHJ Kaly Kaul QC (2019)

Us too? Bullying and Sexual Harassment in the Legal Profession, International Bar Association (2018)

Barristers’ Working Lives 2017: Barristers’ Experience of Harassment, Bullying & Discrimination, Bar Council (2018)

Raising the Bar: Empowering Female Lawyers Through Coaching, Nikki Alderson (2019)

Association of Women Barristers – open to male barristers too: www.womenbarristers.com

If you want to report an incident, please go to: talktospot.com/barcouncil

What constitutes inappropriate behaviour? www.barcouncilethics.co.uk/documents/discrimination-harassment-bullying-and-inappropriate-behaviours/

Find support: visit www.wellbeingatthebar.org.uk and for confidential help call: 0800 169 2040