Flexible Operating Hours: all hope abandon

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HMCTS has announced it is pausing the flexible operating hours pilots. Morwenna Macro, who petitioned against the plans, asks whether the controversial scheme should be abandoned altogether


As a determined 16-year-old, I wasn’t put off when told that many chambers didn’t like taking on females because they go off to have babies and don’t come back. While fortunately attitudes have dramatically changed in the last 20 years or so, and indeed the number of women commencing pupillage is now almost at parity to men, many barriers still remain. There is still a very significant problem in retaining talented women barristers. In turn, this means significantly fewer women QCs and significantly fewer women on the Bench.

When I first read about the proposed introduction of ‘late courts’ I was not only dismayed, I felt physically sick. Over recent years, significant strides have been made in the profession towards improving opportunities for women and reducing obstacles to their continued practice at the Bar, particularly after maternity leave. All of this was threatened to be undone in one fell swoop.

My first daughter was born in March 2010. My chambers, Five Paper, was very supportive and I benefitted from some very progressive maternity policies. While I was given a generous rent-free period of maternity leave, plus the first three months back in work, that merely mitigates, to a small degree, against the huge financial impact on barristers who take parental leave. We are self-employed and not entitled to maternity pay; when we return, it is to an almost empty diary and not far off starting over again.

However, the biggest stumbling block for me were the practicalities. How am I going to manage being a mother and a barrister? How will the childcare work? How can I arrange and afford childcare that is flexible enough to cover my unpredictable working pattern, early starts for travel, and late finishes? Is all this sacrifice worthwhile?

I overcame an illness in sixth form and made it all the way, against advice and against the odds, to become a barrister. Again, I overcame adversity and made my return to the Bar work. The only way it could work was to employ a nanny (no nursery was open early or late enough; no nursery was flexible enough). I spent more on my nanny’s salary than I myself earned. I also was permitted by my chambers to become a home worker. That way I have been able to see my children. Even when I am so busy I work evenings and weekends, I can normally grab a precious moment with them.

So I have managed to make my career work. It is just about compatible with home-life or being a mother. Several years on and I am now finally back to where I was financially before I had children.

Unworkable and unfair

Therefore, when I heard about the ‘late courts’ (or now) ‘flexible hours’ pilot, I knew that I needed to speak up. That is why I set up a petition. To date, 5,303 people have signed the petition, calling on HMCTS to put a halt to the pilot scheme: https://you.38degrees.org.uk/petitions/no-to-late-court-sittings. There are a multitude of reasons why ‘flexible hours’ are unworkable and unfair. I explore some of these below.

Imposition of ‘flexibility’

First, in my view ‘flexible hours’ is a misnomer. It is not flexible to have a shift system imposed upon you. Court listings work for the exigencies of the court, and on the whole not for any of the users, let alone us lowly practitioners. It is not flexible to be told (in many cases only at 4pm the day before) that you must attend court at 8am or for a hearing likely to finish at 7pm or even later. While we need to be flexible to fit around last-minute briefs, or over-running lists; court listings are not malleable to our own needs. When my appeal last week ran on until almost 6pm, the clerk was (rightly) told that he need not stay; counsel were simply expected to keep going.

The fact is it is not practical for anyone with caring responsibilities to have such ‘flexibility’ imposed upon them. It is hard enough for practitioners to make things work at the moment; introducing early and late shifts will make life impossible for many.

Practical obstacles

The practical obstacles thrown up by early and late shifts include the following:
•No time for case preparation.
•No time to meet clients before and after court.

Arriving for 7am becomes impossible. Few barristers are confined to working in a local court and many regularly travel three hours plus to court. We cannot forgo a proper night’s sleep and be productive. Public transport does not cater well for early travel.

Childcare is rarely available before 7am and after 7pm (and even those hours are hard to cover). This includes nannies, who not only deserve their own home life, but are covered by working time regulations.

The early and late shifts of course will also negatively impact upon many court users (parties, witnesses, victims, jurors, those that attend regularly as part of their job such as housing officers, social workers, expert witnesses) with children and who must also travel to court, which is not always close to home. The shift system may also in reality erode the current flexibility of the court day to accommodate urgent or over-running cases, and the shorter shifts will make cases last longer.

An experiment too far

So I welcome the decision by HMCTS to pause and listen. I sincerely hope that HMCTS this time engages in proper consultation of the professions, and does heed our well-founded concerns. Justice is an important right that is easily eroded. Barristers must be able to represent their clients properly. They need time to prepare and time to rest. It is important that we continue to improve access to the profession and judiciary to all and retain our talent. Please HMCTS do not take this regressive step. This is an experiment too far. Abandon the pilot before many talented barristers are forced to abandon the profession.

Court currently finishes around 4pm, by the time results sheets have been filled in and the necessary people spoken to I am lucky to get home by 6.30pm (and I live reasonably close to court). If that timetable is pushed back by two hours and I don’t arrive home until 8.30pm then my children would rightly feel abandoned. By that time they will have been home from school alone for four hours, by necessity they will have to have fed and looked after themselves. My children are of an age where they could probably handle that as a very occasional event, but I would be reneging on my responsibilities if this was to happen regularly.

Quite apart from the debilitating financial cost, very few mothers would feel they were fulfilling their caring roles if their children had to experience this sort of unpredictable upheaval to their daily routines. Even once home after the proposed late sitting many barristers would need to do further work on their case.

MMC: mother of 2 school-age children

If the court hours were extended to 8.30 pm or even 6 pm, this will make life so difficult for working parents that I suspect a considerable proportion will be forced to consider alternative careers. Of course, with the responsibility of childcare still falling largely in the lap of women, it is they who will be put at the greatest disadvantage.

LA: mother of children age 3 and 1

The criminal Bar is not well paid which means that it would be impossible, certainly for me, to fund a nanny, which is what the reality of late and uncertain finish times would mean. That would leave many women with no alternative other than to give up a career which we value and enjoy despite the difficulties inherent with it.

SR: mother of 9 year old

We will not know from one week to another whether our trials will be early or late and arranging, let alone keeping consistent childcare will be incredibly difficult.Our routines will be shot to pieces and life even more stressful than it is already. Routine is particularly important in my house as my son has autism – when it changes it is extremely disruptive.

HD: mother

Any extension to the sitting hours of the Crown Court to 6pm would make it impossible for both my wife and I to continue to practise at the Bar. At least one of us would have to consider an alternative career.

LB: father of 2 young children

 

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Morwenna Macro

Morwenna is a commercial and Chancery Barrister practising from Five Paper Chambers in London.