Recognition & Retention

Flexible working—hardly revolutionary, but underused at the Bar—is the answer to female retention. But it must be adequately rewarded, writes Melissa Coutino.


Even with some peaks and troughs, the number of women who get called to the Bar has been fairly significant for the last 20 years, with little gender gap in numbers at call. Steady growth over this period has meant that women now actually outnumber men at call. However, this differential markedly changes so that by 15 years’ call, men outnumber women by 5:1.


Competing priorities

It is easy to explain away this phenomenon with the rationale that motherhood and a career are difficult to combine, but according to the Bar Council’s Equality and Diversity Committee (EDC) exit survey, less than 50% of women at the Bar actually have children. While there may be those who leave in order to start a family, there is some evidence to suggest that these also may be in a minority. What does appear to be the case from talking to people who make career changes, is that when competing priorities arise, be these care arrangements, health concerns or other reasons that prompt a change in lifestyle, they re-assess their situation. The following question is posed: is my practice sufficiently rewarding to remain in independent practice? Or to put it another way: am I likely to receive sufficient recognition to make a continued sacrifice worthwhile?


Earnings trap

Through all the events run by the Association of Women Barristers (AWB), our current theme—Recognition and Retention—has been in evidence as we have identified an important link between these two elements. Reward and recognition is not just about the intrinsic value of knowing that a job has been done well, but also financial re-numeration. Sadly women earn, on average, less at the Bar than their male counterparts. Whether this may be partly down to the fact that some women may be more likely to work fewer hours on average, given their role as primary care-givers, this is certainly not the whole picture, as the Employed Bar Committee (EBC) surveys show, where part-time working and corresponding salaries are easier to quantify. While the legal profession is not alone in illustrating a gender-bias in earning capacity, it is a shame that a profession that can lend itself to part-time working so well, for both self-employed and employed practice, relying on skill rather than any physical trait, falls into this common trap.


Tackling the issues

In working out how to address such issues, it has been useful to talk to key players within the Institute of Barristers Clerks and we were particularly delighted to work alongside Michael Goodridge of 9 Gough Square at the Bar Council’s Managing Career Breaks course. In fact, what emerged from this series of talks was the importance of planning different ways of working, whether this involves a career break or simply managing one’s career to accommodate other priorities. Getting a start on this skill is clearly important to those who have part-time judicial aspirations, but the message that one’s career does not need to be put on hold with careful management was new.


From court to paper

Top tips included obvious planning that nonetheless might be easily overlooked: do not assume that one can move from a court-based practice to a paper practice overnight—inform your clerks and build up experience. In fact, flexible working, professionally managed, was preferable to a lengthy career break where one could not always pick up where one had left off. Changes in the law, new competition from colleagues and the loss of daily experience often means that confidence in one’s ability has to be re-learned, both on a personal level and by those who instruct you.

Court-based practices do not always lend themselves to flexible working. However, women are more likely to do crime and family than specialist civil or chancery work, (often despite aspirations to the contrary, EDC surveys suggest). Is this a question of prejudice, given that there is no empirical evidence that women are less suited to such areas of practice? More work needs to be done to address this.


Flexible working

There are a number of barristers, male and female, who nonetheless do manage to work flexibly while retaining a court-based practice, although sometimes this may mean having to restrict the numbers of cases one takes or the number of hours one works, rather than be wholly prescriptive about particular days of the week. Where such a strict arrangement is required, some benefit is offered in having an employer, given that the rules regarding conduct allow for some flexibility in the way the cab-rank rule operates and the obligations to the court for those in employed practice. Employed barristers are not subject to the cab rank rule in the same way as their self-employed counterparts. It is their employer who has the duty to the court to ensure that a suitably prepared advocate presents the case and they will decide in which circumstances flexible working terms can properly be offered. Good judges will recognise what this difference means.


Need for the AWB

To those who ask if the AWB’s continued existence is necessary, I would say not only necessary, but essential. There is still inequality between the sexes when it comes to who is doing good quality work and how this is being rewarded. When it comes to having more women judges and QCs, greater diversity would assist with public confidence, in better reflecting the make-up of the wider population. While this offers a business case for diversity, there is also the importance of encouraging those currently at the junior Bar, or those considering embarking on such a career, that excellence will be recognised and rewarded.

It is less than a generation ago that women had to fight to wear trousers in court. More serious changes now need to be achieved. Good work is continually going on behind the scenes, responding to consultations and highlighting inequality, while suggesting solutions. A number of high profile women have worked hard to bring about much change already. When gender is no more than an arbitrary characteristic, there will be no more need of the AWB.


Mentoring assistance

Meanwhile, we can assist where a confidential mentor is required, where introductions to a new circle of instructing solicitors are needed, where high profile lawyers want to encourage a new generation or where discrimination is encountered from the unenlightened. Over the years, we have built up a network of those sympathetic to diversity; such information is power. If you want to demonstrate a commitment to diversity, irrespective of your gender, do join the AWB.

Melissa Coutinho is Chair of the Association of Women Barristers and a member of the Government Legal Service. For more information about mentoring, contact esther.maclachlan@9goughsquare.co.uk

 

Committed to diversity: the AWB in 2008

The Association of Women Barristers (AWB) had a busy year in 2008.  At the AGM, Dame Mary Arden compared the percentage of women judges in other European countries and in Asia with ours; we lag behind. At the next event, Lord Justice Roger Toulson spoke as a Commissioner for the Judicial Appointments Commission (JAC). He praised women as natural multi-taskers of the 21st century, for having a breadth of life experience that the JAC welcomes; he encouraged women to apply for judicial appointments. The AWB also participated in one of the Bar Council’s Round Table Events on Diversity, focusing on gender where we made the point that without recognition of talent, women who are called to the Bar will not be retained.

At the annual dinner, Helena Kennedy and Joanna Trollope helped us raise approximately £25K for two exceptional charities (INS and the Mulberry Bush). We joined forces with the Equality & Diversity Committee and Employed Bar Committee of the Bar Council and ran a workshop where professional diversity consultants took us through a role-play in which a female prospective pupil who could not “sell herself” was interviewed by a pompous tenant. Amidst the laughs, class, language, religion, race and gender were all explored, along with the warning that we are all susceptible to prejudices and suggestions on how we tackle these.

 

 

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Melissa Coutinho

Melissa Coutinho is a lawyer for the Government Legal Service An accredited arbitrator, qualified PPM practitioner and a magistrate, she also writes and lectures on medical products and their regulation.