It is commonly accepted that safeguarding the future of the Bar as a profession relies a great deal on ensuring its membership is comprised of a rich tapestry of individuals from diverse cultural, religious and socio-economic backgrounds. The importance of well thought out and implemented policies, built around basic principles of equality and diversity, cannot be underestimated, in achieving and maintaining a ‘Bar without barriers’. This term applies to both the services offered by the Bar and its composition – where one is inextricably linked to the other.
Recently, the Bar Standards Board (BSB) and Bar Council have jointly taken great strides forward to raise awareness in all Chambers of the important role they must play in building a strong and diverse Bar. This raising of awareness has been done through the provision of improved regulation (via the New Code of Conduct), guidance, and regular training sessions.
Yet, a report published in July 2016 by the Bar Standards Board (BSB) entitled ‘Women at the Bar’, which discusses the results of a recent survey to better understand women’s experiences of the BSB’s own equality rules, shows there are clear administrative issues within Chambers. The report evidences failures to introduce adequate Equality and Diversity practices, by referencing a 50/50 split between positive and negative experiences reported by the women surveyed.
The report highlights issues in many areas such as ‘flexible working arrangements’, ‘recruitment policy’, and ‘maternity/parental leave’. However, one of the most important areas for concern relates to the fair/non-discriminatory allocation of unassigned/unallocated work.
Ensuring work is allocated without the influence of prejudice, discrimination (direct or indirect) and by objective decisions based on suitability and merit, is the cornerstone of good equality and diversity practice. The BSB has provided some helpful support and information in an attempt to guide Chambers through this difficult topic, not least in the form of the ‘BSB Handbook Equality Rules’ (The Rules). However, the comments printed in the report are a damning indictment of how the Rules are being implemented (or not it seems) by some Chambers.
“I have never seen any evidence of data generated in connection with work allocation monitoring and the culture in chambers doesn’t prioritise this.”
“Clerks are very reluctant to give information on work allocation – the culture in chambers is such that it is seen as ‘difficult’ or ‘disrespecting the clerks’ if you ask questions about this.”
We can look to the Rules for a definition of ‘Unassigned/Unallocated Work’:
‘Work is unassigned at the point of enquiry and/or at the point at which it is sent into Chambers, if the person instructing does not state that it is to be assigned to a named member of Chambers.’
In the Rules, the BSB outlines three key responsibilities for Chambers where monitoring of fair allocation of work is concerned:
- Record: Chambers are required to record whether work came into Chambers marked for a particular barrister/pupil, whether it was allocated and if so, to whom and upon what basis it was allocated and who was responsible for allocating the work.
- Review: Chambers are required to regularly review the data they collect, and analyse it by categories such as race, disability and gender.
- React: Chambers must react to any identified disparities in the collected data and take appropriate remedial action, if required.
The Rules makes several suggestions on how Chambers can analyse its data when reviewing allocation of unassigned work. For example, by examining patterns of work allocation relating to earnings, quantity of work, or sources of work. It suggests that Chambers could analyse earning potential of black minority ethnic practitioners at a particular level of call in comparison with other ethnic minority backgrounds at a similar stage of their careers. Or, that Chambers may wish to examine why specific types of cases are being allocated to male members of chambers rather than female.
However, the Rules do not prescribe the exact methodology Chambers should apply when collating or analysing the data. It gives no specific guidance on how the data should be entered, sorted or queried. It gives no details about the extent of record keeping and analysis that is required or how best to root out and identify any instances of unfairness.
But of course, in reality, how could the BSB be any more prescriptive?
No two Chambers are the same. Each has its own personnel with varying experiences; each running their own bespoke internal processes.
Quite plainly; the onus for identifying what constitutes compliance, falls on Chambers individually. It is up to them to apply their own interpretation of the requirements and build/entwine new processes into existing practices to support their overall aims. They must decide which data is to be entered and stored, how it is to be reviewed and which remedial actions are necessary. Chambers must build policies that are transparent, well publicised and that meet the requirements of all members. None of this is easy however and there are difficulties to overcome.
Never before has the running of a successful, modern, busy clerksroom, presented more of a challenge. The reduced availability of work in traditional sectors and cuts in fees have impacted on staff to member ratios. Important decisions are frequently made by increasingly junior members of staff.
It goes without saying, that trying to implement new policies or procedures in areas such as the fair allocation of work will quite simply involve more work for the staff. Taking on the additional responsibilities required for monitoring purposes, such as entering additional data or generating reports for analysis, reduces the time available to staff to perform other important functions. Less time equates to more pressure. Working in such an environment, it could be argued, makes it more likely that work will be allocated instinctively in the first place and without objectivity. Without careful management, the introduction of measures designed to improve equality could be counterproductive in practice.
However, the positive comments in the BSB’s report, demonstrate that, when implemented correctly, monitoring of work allocation can be achieved with positive effects:
“It is monitored fairly, rigorously and in a transparent way. We are provided with spreadsheets at practice reviews demonstrating the results of monitoring.”
It is for situations such as this, that well thought out software solutions should provide a platform to build and deploy successful policies. Software should offer simple tools and features that make data entry easy, which supports users, and allows them to continue to work efficiently. Functions should be designed to allow for a greater depth of data, but should do so by offering a simple and unobtrusive interface to end users. This shouldn’t be at the expense of providing the excellent reporting and analysis features required by those working at management level. There must be balance.
With the correct software, it is more likely for policies to thrive and meet their objectives.
Ultimately however, even with the greatest software, the success of any policy on the fair allocation of work will only ever be really effective if the ‘people’ involved at all levels are deeply engaged in the process, and committed to ensuring there is equal opportunity for all. Without such commitment from the human element of any fair allocation process, the data/reports/statistics can effectively be reduced to ‘tick-box-exercises’ designed to feign compliance.
To succeed at anything, any business needs to invest in its people. There is no truer example than here; where it is vital to support the implementation of policies relating to the fair allocation of work by the introduction of regular staff training at all levels. Only by placing education and information at the core of any initiative, will the tools that excellent software provides be put to best use. Changing the mind-set of users, explaining why it is so important to record more data, run more reports, take remedial action, is the way to achieve a ‘Bar without Barriers’.
The aim should be simple; to try and eradicate the 50% of negative comments and ultimately to banish all reports of inequality.
That is the challenge. Will your Chambers join the fight, be at the forefront and maybe even lead the way?
Damien Breingan, Product Development Manager, Bar Squared