Fair share

All members should feel that chambers is doing their best for them. But how can you check work is being allocated fairly, and how can clerks demonstrate the fact of fairness? Rachel Crasnow QC reports from a seminar addressing these concerns

On 27 March 2017 a packed house at the Bar Council debated the fair allocation of barristers’ work. 

The seminar I chaired heard from a panel of clerks, practice managers and diversity experts from the Bar Standards Board (BSB) and Bar Council, who mused over this fast-evolving subject. The emphasis was on communication, transparency and outcomes.

What are the rules on distributing work?

Our starting point was to remind ourselves of the requirements of the BSB Handbook. This tells us that chambers must regularly review the allocation of unassigned work, including collecting and analysing data broken down by race, disability and gender, investigating the reasons for any disparities in that data and taking appropriate remedial action (rC110.3.h).

Secondly is the requirement for a fair distribution of work opportunities among pupils and members of chambers. This has to include (but is not limited to) pupils; barristers of fewer than four years’ standing; and barristers returning from parental leave 
(rrC110-112).

The rules require three kinds of action arising from this monitoring duty. They are to:

  1. record the unassigned work along with the basis for the allocation decision;
  2. review the data which has been collected into categories; and
  3. react to concerns identified in that data.

What is unassigned work?

We focused upon the need to define terms. What actually is unassigned work? What order of names should clerks use when listing those who are available to solicitors? Why do the BSB rules confusingly mandate data gathering for up to four years’ post call, but merely recommend it is done thereafter for more senior practitioners? What should be the practice with third six pupils? (We thought they should be included in such monitoring.)

How can we demonstrate fairness?

An ongoing theme was that as important as focusing upon the means of monitoring unallocated work, is the way in which we can demonstrate that the monitoring is credible and convincing. In other words, how to convince others of the fact of fairness? Evidence of the process of fair allocation is meaningless without taking the opportunity to review individuals’ practices and finding meaningful ways of explaining the outcomes of such monitoring. So chambers must consider what they want their reports to deliver before building their reports system. The fair allocation of work ought to be part of each chambers’ equality and diversity policy; evidence of both good and bad practice was cited in the BSB’s Women at the Bar survey last year (see 'Women at the Bar on work allocation' below).

One frustration expressed was the lack of any specific guidance from the BSB about how to input or collate such data, or how to go about analysing it. How specific can one be, though, when chambers come in many shapes and sizes? Fortunately, the Bar Council is bringing out updated guidance over the coming months which should give confidence to even the hardest pressed chambers about how to gather data and to collate meaningful reports from which action can be taken where necessary.

What are the risks?

Our discussion about the risks of fairly allocating unassigned work was illuminating. What if the process of putting forward all barristers who are free for a piece of work slows down the time a clerk takes to get back to a solicitor, risking a deterioration of a valuable relationship? What guidance should the BSB and Bar Council be giving about the balance between confidentiality and transparency of barristers’ work, from diaries and cases undertaken, to fee level? There was a range of opinions expressed here. The panel largely agreed that an equality and diversity officer (EDO) does not need to see who gets what work, but needs to be confident that work is being correctly monitored by the diversity data officer (DDO) and there is no bias based on protected characteristics.

Rocking the boat or candid talk?

One theme to which we returned several times was the importance of ongoing communication. Ensuring an open chain of communication between a practice manager and a barrister from the early days maximises the opportunity for candid and direct discussions when concerns are raised about perceived lack of opportunities. Similarly clerks need to know what members of chambers’ objectives are before they can allocate unassigned work. Barristers ascribe values to types of work in different ways: one practitioner may rate work which pays well, another, a case that is widely reported.

Given that many chambers do not have the resources to devote optimal time to monitoring the fair allocation of barristers’ work, it can be easy for communication to slip through the net. Where work is thinly spread and practitioners see themselves as competing for work internally, there may be understandable reticence about ‘rocking the boat’ and complaining to the clerks about the suspected preferential treatment of others. We felt it was important not to neglect the review of practices or charge-out rates even in busy times, as a pattern of ongoing meetings made it easier to raise worries when they arose.

Addressing unconscious bias

We all agreed on the important need for training: particularly in unconscious bias. It’s much easier for barristers to put their faith in those who are allocating the work if they know the possibility of bias has been properly considered in a formal setting. Further, the need for all doing the monitoring to be adept at the software and in agreement about the outcomes in terms of reports required is paramount. There is little point in having a fair allocation policy in chambers if there has been no training about how to implement it.

Monitoring responsibilities

We noted the need for practice managers and clerks to work alongside chambers’ EDO and DDO to reach a consensus on objectives (such as the production of a quarterly allocation review and to whom such a review is shown). Those in chambers who support staff need to be alert to the workloads of those charged with undertaking practice review meetings with practitioners.

Everyone at the seminar recognised the necessity to take appropriate action should any adverse trends be identified by the monitoring reports. In particular, communication within a confidential setting was seen as pivotal.

This is only the beginning of an ongoing debate. I’d like to thank all our speakers and audience. Please look out for future training sessions provided by the Bar Council and the Legal Practice Managers Association (LPMA). It would be constructive for software providers to have an ongoing dialogue with the LPMA to maximise the quality of training.

Further information

The panel at the Bar Council seminar was made up of Rachel Crasnow QC, Julia Witting and Ruby Newton from the BSB, Sam Mercer, Head of Policy E&D and CSR at the Bar Council, Jason Housden and Natalie Hearn from Matrix Chambers and Fiona Fitzgerald, Chief Executive of Radcliffe Chambers. Please address any queries or concerns about the fair allocation of work to Sam Mercer at: smercer@BarCouncil.org.uk

Contributor Rachel Crasnow QC is Chair of the Bar Council’s Legislation and Guidance Panel, a subcommittee of the Equality & Diversity & Special Mobility Committee

You can’t manage what you don’t measure

One of the basic tenets of good management is that if you can’t measure something then you can’t manage it. Fair allocation of work is about transparency and trust, particularly ensuring that all members have access to work and access to marketing opportunities. In order for it to work it must become part of the normal workflow in the clerks’ room. Opportunities are the lifeblood of all chambers – not only in their allocation, but also in their conversion to actual work for a member. Once chambers accepts this, it makes good financial and business sense to carry out the monitoring.

As with any change it takes time to get it right. The key to doing so is questioning the data received, checking for accuracy and changing how the data is obtained until you get it right. Technology is fundamental to making the process easier. If a case management system is used to its full capability the job becomes much easier for the staff involved. It is a work in progress but LEX, our software provider, takes on board our feedback and makes changes to the software as appropriate. Given the changes within chambers over the last few years it is important that all members feel that their chambers is doing the best for them. Fair allocation monitoring is one of the tools in the arsenal to assist staff in achieving those goals.

Contributor Fiona Fitzgerald, Chief Executive of Radcliffe Chambers

Track and trace

Our system of work allocation started several years ago from a desire to track enquiries as they come in. It makes good business sense to understand the flow of work. We track these enquiries through the ‘opportunities function’ in LEX, and this gives us rich data suitable for looking at the allocation of work for the purposes of equality and diversity monitoring. We monitor work allocation through a system of quarterly meetings, a weekly review of the opportunities, and an annual review of private hourly rates.

Our quarterly monitoring meetings are conducted by our work allocation team: our two EDOs, DDO and Practice Director. The meeting considers the total and average number of opportunities (using our method to track enquiries) for each diversity category. Members are allocated to their diversity categories based on their responses to our data questionnaire. We monitor gender, disability, ethnicity and those returning from career breaks (whether for parental leave, sabbatical or secondment). Our members are divided by seniority within these categories by QC, junior of more than six years’ Call, juniors of one to five years’ Call and trainees. These figures are then compared with their counterparts (for example, female QCs are compared to male QCs). Any disparity identified in the averages leads to a discussion on actions we can take to address this. Our discussion is recorded, and then reported on in an anonymised way to our management committee for its approval. This works closely with a background of practice development meetings and constant communication between members and the practice desk to support our barristers’ practice aspirations and objectives.

Contributors Natalie Hearn, Project Manager and Jason Housden, Practice Director at Matrix Chambers

Women at the Bar on work allocation

Research published by the BSB in 2016 revealed women barristers’ stark experience of the equality rules in practice: almost half had encountered discrimination and over two-thirds had considered leaving the Bar. On work allocation, over a quarter had negative experiences, a lack of transparency being often cited, but a third had positive things to say.

The majority of self-employed respondents (71.6%) had not queried how work had been allocated to them. Respondents whose chambers did not monitor the allocation of unassigned work were significantly more likely to question the process (39.4%) than those whose chambers did monitor the allocation of unassigned work (23.7%) or those who were unaware if unassigned work allocation was monitored or not (26.9%). Only 13.6% of those under five years’ Call had queried work allocation, compared to 27.3% across the sample as a whole.

  • ‘The culture in chambers is such that it is seen as “difficult” or “disrespecting the clerks” if you ask questions...’
  • ‘The clerks stopped briefing me entirely and did not speak to me when I went into the clerks’ room.’
  • ‘I found I was allocated work with the same regularity as other members of chambers. There was no “unfair” or “unequal” treatment.’
  • ‘I queried the allocation having returned from maternity leave. Once queried, I did have a significant increase in work.’
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Rachel Crasnow QC

Rachel, of Cloisters, is renowned as an employment and equality law specialist appearing in complex, high-value claims. She is Chair of the Bar Council’s Legislation and Guidance Panel and sits as a part-time judge. @RachelCrasnowQC