Guest blog: Joanna Chatterton and David Murphy of Fox Williams LLP

14 July 2016

 Jo ChattertonDavid Murphy

 

Solicitors Joanna Chatterton and David Murphy of Fox Williams LLP advise Chambers on diversity related issues.  Following on from their recent talk to the Bar Council's Equality and Diversity Officer network, they outline the common pitfalls that Chambers encounter in practice. 

These insights are timely, given that the BSB has recently published research on discrimination, and provide practical and useful information to help chambers feel confident about addressing such issues. 

The increase in instructions we have received from Chambers seeking advice on diversity and discrimination issues suggests that the focus by the Bar Council and the BSB on this important issue is having a real impact. We are much more likely now to be asked to help Chambers to plan their approach to managing diversity-related issues than to be called in to limit the damage after the event.  There also seem to be more grievances raised by both employees and members about discriminatory treatment. 

These changes suggest that Chambers are looking to be proactive about managing discrimination risk and that those working in Chambers have a greater awareness of how the law protects them and a greater confidence in speaking up when they believe they are not being treated appropriately. In this context, the role of the Equality and Diversity Officer (EDO) has become and will become ever more important as the focus on diversity continues, for example, with the BSB publication of its gender research over the next month.

Diversity presents a particular challenge to Chambers largely as a result of their unique business structure, the one member one vote concept and the clerking model, which has many advantages but also some potential for abuse.  There are aspects of diversity law and best practice that do not always fit neatly into this context.  However, Employment Tribunals are not sympathetic to arguments that exceptions should be made for Chambers because of these challenges.

In July 2016 we shared with the Bar Council's EDO network our experiences of advising Chambers on diversity related issues and in particular six common pitfalls that Chambers encounter.  It was clear from the discussion that EDOs were all too familiar with these observations.

1.Not living up to your own PR and policies

BSB requirements to have policies and statements on diversity are too often seen as a tick box exercise with no reference being made to either when management decisions are made.  This undermines credibility internally, externally and importantly with an Employment Tribunal hearing a discrimination claim.  It is best to avoid the grandiose claims most businesses can never live up to and make your statements on equal opportunity aspirational.  It is also prudent to ensure your policies for dealing with grievances, flexible working etc are principle-based and flexible, rather than prescriptive and over complicated.

2.    Members who don't act like employers

The Bar attracts people who want to work independently outside the constraints of a partnership or corporate entity but no barrister is an island.  When working in a regulated community such as Chambers there is never complete freedom to behave exactly as you would like.  Some barristers have a tendency to think the rules on how to behave professionally within Chambers do not apply to them and encourage others, for example, the clerks, to break them.  If the "boss" sets this example, how can you expect others to keep to the rules? We have seen experienced barristers actively working to undermine professional managers in the context of grievances and disciplinaries involving clerks in pursuit of their own agenda - a good example of barristers not looking to the wider interests of Chambers and its brand. An Employment Tribunal will not warm to an argument by a member that a clerk should not be fired for harassing a colleague because he/she secured them their best case or to a Chambers which disciplines its employees for discriminating but does nothing about the discriminatory behaviour of its members.  

3.A "can't do" not a "can do" attitude to change and something which is not the norm

Collaborative solutions are often needed for flexible working to accommodate parents or those with disabilities. This can be a challenge for Chambers since the collegiate and supportive colleague may suffer a direct financial hit as a result of stepping in to help.  Employment Tribunals, however, expect an open mind and a willingness to explore and try different ways of working. If you cannot show that you have been open to trying solutions to overcome, for example, an illness or request to work flexibly, they will not be sympathetic to your arguments that such flexibility simply cannot work. Looking at the size, resources, sophistication and management structure of a set of Chambers, high standards will be expected.

4.Lack of awareness of best practice and the outside world of work

The Bar is full of individuals who are highly talented in their chosen fields.  Often they have spent their entire working lives at the Bar honing their skills and expertise.  Whilst this has been good for their practices and their clients, it does mean that for many barristers - with the exception of those in areas such as Employment - their direct insight into the day to day working environments and employment relationships of today outside of the Bar and its unique environment will be relatively limited.  As a result they will often not have a great amount of awareness of what is considered best practice in other professions and fields and therefore by Employment Tribunals hearing discrimination complaints.

5.Constitutions that hinder rather than help manage risk

There can be a lack of clarity in Chambers' constitutions as to what happens when things go wrong or rules that are insufficiently flexible to handle certain employment and member relations disputes in a way that is practical and compliant with the ACAS Code of Practice on Disciplinary and Grievance issues.  We have seen constitutions providing that the dismissal of the senior clerk should be conditional on a vote of members - yet the ACAS Code provides there should be a right to appeal against a dismissal to someone with the authority to overturn the decision.  Who can that be if Chambers as a whole has voted in favour of it?  Constitutions need to be living documents that are fit for purpose.  This requires them to be updated from time to time in a cohesive way and not put in drawer and forgotten about. 

6.A reluctance to let professional managers do the jobs they are paid to do

Despite the rise in the number of Chambers employing professional managers over the last 10 years or so, we often see members of Chambers failing to make the most of the expertise and experience of such individuals, and a reluctance to let them get on with the jobs they are paid to do.  This is despite the fact that most barristers are not greatly experienced in managing employment and member relations issues whereas their professional managers often are.  Professional managers can provide members with invaluable guidance and advice, and the benefit of their experience of best practice outside of the Bar.  They can also be a valuable sounding board for executive/management committees, including when dealing with issues relating to members and their relationship with Chambers. 

Joanna Chatterton, Partner, and David Murphy, Legal Director, Fox Williams LLP