New chapter: ending sexual harassment at the Bar

It’s not just women who are victims, not just men who are perpetrators and not just dinosaurs who are the problem. Sophie Garner and Esther Gamble outline the new Bar Council guidance on sexual harassment – busting myths, altering mindsets and powering collaborative change

This year has seen a sea change in attitudes to sexual harassment at the Bar, not least within the pages of this magazine. Outgoing Chair of the Bar, Andrew Langdon QC set out the Bar Council’s ‘Zero Tolerance’ position in January 2018’s edition of Counsel. Selena Plowden and Kate Brunner QC of the Western Circuit Women’s Forum wrote in detail about sexual harassment in the barristers’ profession and the culture change needed (‘#TimesUp: calling it out at the Bar’, April 2018). Behind the Gown, a group of initially anonymous barristers committed to tackling harassment at the Bar, were interviewed by Alice de Coverley about their insights into barriers to change (April 2018). The September 2018 issue analysed the Bar’s attitude to harassment (‘Barristers working lives: something must be done’, David Wurtzel). The Bar Council has a two-year work programme specifically designed to tackle the issue with three pillars: identify, report, support. So what support is available right now?

The new guidance

Over many months, we and a number of others have been working with the Bar Council to produce a new and comprehensive package of guidance for barristers and chambers, to help them tackle the problem of sexual harassment. The package will include a new model policy to be adopted or adapted to help prevent and deal with harassment; an interactive training course designed to educate and equip everyone from head of chambers to the most junior clerk; a flowchart with a clear guide as to what steps can be taken in the event of a complaint arising; and a revised version of the Bar Council publication, Tackling Sexual Harassment: Information for Chambers.

The package will be launched in autumn 2018, but will it help chambers move beyond box-ticking? Will this flurry of awareness-raising fade into the background with a return to ‘business as usual’? Or will we be able to look back in the years to come and see a real difference?

The overarching aim behind the redesign of the Bar Council guidance was to provide practical, realistic solutions, together with support to tackle what seems to be – even in 2018 – an intractable problem in our profession. Sexual harassment is not just a problem in its own right, but often goes hand in hand with a pattern of deep-seated discriminatory and outmoded attitudes towards women within chambers. For example, overly paternalistic or jolly avuncular comments to a female junior colleague might seem innocuous, but the impact can be to infantilise the recipient in their own and others’ eyes. This can then lead to assumptions being made about the recipient’s competence and ‘ability to cope’ by colleagues and clerks alike – potentially impacting, in turn, on work distribution, which can amount to direct discrimination.

Changing mindsets

Front and centre has to be education about inappropriate behaviour. Uncomfortable truths have to be acknowledged and tackled. Why is a comment that would quite reasonably raise a laugh down the pub with your mates inappropriate at a Circuit dinner? Why is it that making a casual ‘jokey’ remark in front of her colleagues may leave a usually strong woman feeling shaken, intimidated and isolated?

What about a comment to a younger female opponent, at the door of the court, about how ‘nice’ her outfit looks? This may seem innocuous but perhaps think of it this way: would you make the same comment, in the same way, about a male opponent the same age as yourself? Would you look him up and down, pausing in the chest or thigh region for that tell-tale nanosecond… and then make a ‘compliment’ about the way he looks? Such comments could leave a junior opponent flustered, tongue-tied and humiliated.

One reason for the high level of quality within our profession is that even between tenants, there is much competition. Sadly, some stoop to believing that subtly denigrating colleagues is a legitimate way of boosting one’s own reputation. In the above example, was it the maker’s intention to humiliate their opponent? Or was it, perhaps, ignorance and sheer inability to judge the impact of their own words? Either way, the maker will learn a lot from the Bar Council training course.

The updated guidance addresses these concerns – and myths. No, it’s not just women who are victims, and not just men who are perpetrators. No, it’s not just dinosaurs on the brink of retirement who are the problem, and no, we can’t just wait a few more years so they will all be gone. Yes, everyone is entitled to let their hair down and have some fun, but not at the expense of others’ dignity; and yes, it’s possible there will be false, malicious complaints, but this has always been so and there is no evidence of it actually happening. What is clear, from the 2016 Bar Standards Board survey Women at the Bar, is that 40% of women at the Bar have been sexually harassed and 80% of them have never reported it.

Pragmatic, practical advice

Many chambers have basic policies covering sexual harassment. But all too often, these have never been used and are wholly ineffective; either because victims don’t have confidence in those handling complaints or because they don’t know where to find the policy – or even whether one exists.

The updated Bar Council guidance advises that whatever policy a chambers has in place should be circulated regularly, and be readily accessible to all in chambers; and it should be sincerely espoused and promoted by chambers’ management. Feedback should be sought, and the policy amended and improved over time drawing on learned experience. New recruits – whether staff, pupils or tenants – should be advised of the measures in place to protect them as well as the behavioural standards expected. An anti-harassment coordinator should be appointed to spearhead the policy’s implementation. If a ‘tick box’ approach is to be prevented practical steps like these are necessary.

The guide advises having a number of people appointed in every chambers who are trained to handle concerns about harassment. If the only person appointed to help when someone is sexually harassed is a senior member of chambers – or, even worse, a committee – this will often be a deterrent to a victim coming forwards. It’s a fact that even people who consider themselves approachable – ‘I’m sure others would come to me if they were harassed…’ – are often not – ‘they’re lovely but I’d never go to them if I was harassed – they’re a guy/too senior/wouldn’t understand what it’s like’. With multiple people trained to handle concerns the aim is to ensure everyone, and particularly the most junior members of chambers, always have someone they feel they can turn to.

The model policy refers to ‘concerns’ not ‘complaints’, moving away from the idea of an adversarial procedure and promoting the idea that if anyone feels they have been harassed it should be a concern for chambers as a whole: it should not be for the victim to pitch themselves alone against the alleged perpetrator. Further, the approach taken should be holistic, with different solutions available to best manage the situation rather than formal disciplinary proceedings being the only option. Practical suggestions, such as avoiding a complainant and alleged perpetrator being clerked into the same case, are included. Ongoing monitoring and support is promoted, recognising that for both victims and perpetrators an incident or allegation can have ongoing consequences.

The guidance brings home that just because you may not have noticed this type of behaviour it doesn’t mean it isn’t happening. It explains that if you do see it happening and don’t challenge it, not only will you have let down chambers and possibly committed a breach of the Code of Conduct yourself, but you will have left the victim feeling doubly humiliated.

The training is designed for all members of chambers, staff and clerks, with an ‘add-on’ section available specifically designed for those in chambers’ management positions. The interactive nature of the training will hopefully result in attendees becoming more comfortable to talk openly about this awkward subject – an important step forward in tackling it. Working through practical examples should give participants the tools and confidence to manage these difficult situations sensitively and effectively.

We are confident that the Bar Council guidance and new training will provide chambers with the tools and inspiration needed to handle concerns about harassment proficiently and empathetically, and give victims more confidence to speak up about what they have experienced. Look out for its launch this autumn.

Now it’s up to all of us – and especially those in management positions – to take a fresh approach to sexual harassment, with the Bar Council firmly behind us.

Sophie Garner is Chair of the Midland Circuit Women’s Forum, which aims to maximise potential through professional development, networking and support for women on the Midland Circuit, and a member of the Bar Council’s Equality and Diversity Retention Panel.

Esther Gamble is Vice Chair of the Midland Circuit Women’s Forum and a member of the Bar Council’s Equality and Diversity Retention Panel, which looks at initiatives to encourage women to stay at the Bar.

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Esther Gamble

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

Sophie Garner

Chair of the Midland Circuit Women’s Forum, which aims to maximise potential through professional development, networking and support for women on the Midland Circuit, and a member of the Bar Council’s Equality and Diversity Retention Panel.