Flexible working flipsides

How we made flexible working work for us, by Esther Gamble

I’d been at the Bar for six years when my daughter was born.

There was never any question that I would want to return to work, but I can’t say I gave a great deal of forethought to how this would work. However, one point was never in doubt: my husband – also a barrister – would share the parenting equally, and we would both make equal sacrifices in our careers.

After my maternity leave, we both moved to part-time work – he working four days a week and me, three. Our work (clinical negligence) consists of as much paperwork as conferences and hearings, and it is rare for our type of cases to reach trial, so our practices lend themselves well to working part-time. We both worked flexibly, covering each other’s days when needed in order to accommodate our clients as much as possible.

I had a hugely supportive clerking team who never made me feel I was a nuisance or a second choice and I think this was key in maintaining my flexible working. So far as my husband was concerned, it perhaps took those around him a little longer to adjust to the idea of a man working part-time, but he persevered and made a success of it.

A move to my husband’s chambers made sense for me professionally, and so for the last six years we’ve been clerked by the same team who juggle our diaries for us, making logistics easier.

There was no official policy for working flexibly: we have simply worked it out, to suit us, by trial and error – and ensured that the lines of communication with our clerks are always open. As chambers’ rent is predominantly a percentage of income there was no need to negotiate a rent reduction.

We now both work five days a week but our clerks ensure that one of us is available to cover the school runs each day. They don’t put pressure on us to miss school concerts and sports days. Equally, if a good client asks to book one of us when we would not normally be available, they will check with us before turning down the booking, giving us the chance to make alternative arrangements rather than miss out on the work. We both have full diaries and have never felt that our clerks have treated us less favourably than others.

This is not to say it is easy to work flexibly. It’s still difficult to say no to a loyal client in order to watch the class assembly. It’s difficult to tell the children that just because we made the last swimming gala we may not make the next. There is lots of working in the evenings and more than either of us would like on the weekends (although that’s the case for most barristers). We have had to stay flexible and change the way we do things as our practices have developed and our children have grown. We have undoubtedly lost work and possibly clients as a result of our limited availability. Our careers have probably not progressed at the rate they would otherwise have done. But we have a mantra: no one ever lies on their deathbed wishing they had worked more and spent less time with their family.

The only time I’ve been overtly discriminated against, I’d been off work the day before a hearing, looking after the children, and the judge berated me in open court saying that my client should not instruct someone who works part-time. Fortunately, my client, sat in court, was outraged at the judge’s attitude; I confess I gave the judge a bit of a lecture about discrimination, and he was rather shame-faced thereafter.

We are lucky that we practise in an area of law which does not usually involve lengthy days in court or last-minute instructions. We are lucky that we have loyal clients that are understanding of our diary limitations. We are lucky that we have hugely supportive clerks. Clearly, not everyone at the Bar is as lucky as we are and for many, working flexibly would bring many more challenges than those we have faced. However with good support from chambers and clerks, and a willingness to find creative solutions, I believe it is possible for anyone.

Contributor Esther Gamble is a barrister at No5 Chambers in Birmingham, practising in the field of clinical negligence

Rachel Crasnow QC looks constructively at the complexities of making flexible working a success at the Bar

Why is it that the self-employed Bar struggles to retain parents (predominantly women) with child care responsibilities? Barristers have always worked flexibly. Perhaps the most obvious example of this is the widespread take-up of fee paid judicial appointments, requiring careful planning of availability for private practice. The very fact of our self-employed work and undertaking cases for different solicitors means we are adept at fitting in conferences here and there, finalising written submissions in time left after court and completing our cross-examination on the train on route to work.

But the ongoing concern about significant attrition rate of female barristers when and if they become primary carers has meant that the successful balancing of professional and domestic responsibilities has taken on new significance, as chambers have wondered how to support those barristers with caring responsibilities. New parents face the significant disadvantages of having no paid parental leave and often see a diminution in practice and income at the same time as new child care costs upon return to work.

This is the difference between the (once usually male) barrister who needed to carve out a fortnight to sit as a Recorder in times gone by and the barrister parent – male or female – who has to do drop offs, pick-ups from nursery or wishes to work a four-day week perhaps during early months of a new baby’s life. Flexible working for carers means mixing professional work with unpaid domestic work. Part-time judges are paid for their other work. Yet not only is caring work unpaid, it is comes at an emotional cost, given the Bar’s lack of fixed hours or predictable rotas and many last-minute demands on time.

Dividing up the day or week in a way which is not always predictable brings novel challenges. Without the support of chambers, colleagues, solicitors and the judiciary, legal life risks becoming unmanageable and indeed unaffordable. Some areas of practice lend themselves far better to flexible working than others – such as the employment Bar, where I was able to manage a four-day week before my children started school. This was successful not just because of a flexible nanny share and good communication with clerks, but predominantly as employment tribunals were almost always content to list cases on a Monday-Thursday basis, skipping Fridays and completing cases the following week where necessary

But this may not be the norm for most primary carers. This brings me to the current proposals for longer sitting-hours – my contention is that would undo a lot of the valuable work which is being undertaken to retain our parents.

Longer sitting hours would lead to the immediate loss of many talented carers (on current statistics predominately women) from the profession. It would deter those with caring responsibilities from court-based sectors of practice, having a profound effect on diversity in all ranks. There would be significant difficulties in terms of arranging child care at a prohibitive financial cost given the lack of predictability and notice about court listing under the new proposals (parents would have to arrange for care to be regularly available for the whole extended court-sitting period). The already fragile work-life balance would be shattered, as longer sitting hours would mean that a primary carer of young children may not see their children at all on the days when they were on late shifts; and the unpredictability of court patterns would play havoc with carefully worked-out arrangements and drive up child care costs.

The Bar Council Momentum Measures Report in 2015 concluded that on current patterns gender equality could never be achieved: ‘The attrition is such that it would require a very long period of substantial imbalance in favour of women at Call to achieve a balance of women in practice.’ Why would we want to make this state of affairs worse by adopting the longer hours’ protocol? Instead we should be promoting flexible working policies and providing training in operating them.

Contributor Rachel Crasnow QC, Cloisters (with thanks to Kate Brunner QC and the Western Circuit Women’s Forum)

Managing flexible working fairly

Getting flexible working policies right

With continued financial pressure on many practice areas of the self-employed Bar, flexible working is rapidly emerging as one of the more difficult issues for chambers to manage fairly. The Bar Council guide to assist those responsible for developing and implementing flexible working policies can be found here.

Parental support hub

Advice, tips and checklists on taking career breaks, parental leave policies, maternity mentoring and information on the Leeds nursery where the Bar Council has been able to arrange discounted places for barristers can be found here.

Author details: 
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

Esther Gamble

Barrister at No5 Chambers in Birmingham, practising in the field of clinical negligence