In January 2020, the national Employment Lawyers Association (ELA) launched its Counsel Instructions Monitoring Scheme amongst the firms and organisations represented in its UK-wide membership of 6,000 employment lawyers, in order to monitor solicitors’ instructions to employment law barristers by reference to gender (of both the solicitors and barristers). The scheme is monitoring and recording how employment counsel are selected and instructed and by whom. Having just celebrated the First 100 Years of Women in Law in its 2019 annual lecture, ELA hopes to help raise awareness of the barriers facing female employment barristers as they seek to progress their careers, and in particular, the obstacles that can prevent or deter them from applying for silk.

As it stands, the association is the first member organisation to be looking at this issue for a specific area of specialism. ELA recognises the part it can play in raising awareness of the issue of equitable briefing and believe that this project could in itself change behaviour. The simple fact of reporting on decision making can trigger questions within teams and with barristers’ chambers regarding the pool of barristers being put forward for selection.

Recognition of the importance of equitable briefing has been gathering pace over the past year. The employment bar is full of immensely talented women yet, each year, far fewer female employment juniors apply for silk than their male peers. Of course, this is not just restricted to employment law counsel, but is symptomatic of wider issues of diversity at the bar.

This is a system where only 15.8% of QCs are female; only 7.8% come from BAME backgrounds; and only around 1% have a disability. This in turn leads to a lack of diversity in the judiciary which still largely recruits from the bar. Without robust data, there is no evidential basis on which to challenge practices which may be limiting the progression of talented members of the legal profession.

For any employment barrister to make silk, the challenge is to have a portfolio of cases that amply display and showcase that barrister’s skills. To that end, it is important to ensure that they have opportunities to undertake such work and that is where issues can arise – if, for example, they are not put forward for such work, or selected by law firms to represent their clients.

There are many reasons why female employment barristers are not getting instructed on the sorts of cases that will help them to progress their careers. One barrier to being instructed can be over-reliance by law firms on a narrow pool of employment barristers, who are known to solicitors and, therefore, considered a 'safe pair of hands'.

ELA is in a unique position to collect and analyse data from the vantage point of the instructing solicitor. Whilst it is just one piece in the jigsaw of reasons – systemic and cultural – for the relative lack of female QCs, ELA hopes to contribute robust data about equitable briefing to help to drive change.

Barristers at the independent bar are self-employed and, whilst they group together with colleagues in a chambers-setting, it can be difficult to mobilise and challenge the status quo despite recognising that there is an inherent problem with inequitable briefing of counsel. The responsibility for getting instructed in the right type of work doesn’t fall on female barristers alone. Chambers and law firms also carry responsibility for ensuring equitable briefing of barristers at all levels.

The ELA scheme had its genesis in September 2018, when a meeting was convened at the Employment Appeal Tribunal, led by Mrs Justice Jennifer Eady and the then president of the EAT, Lady Justice Simler. Both were concerned that the number of female employment barristers taking silk that year did not correlate to the large number of highly skilled female barristers.

This led to an ELA pilot study amongst a small number of firms last year to look at this. The data suggested that there may be a link between the gender of the instructing solicitor and that of the counsel chosen. However, the data set was too small to be conclusive, prompting ELA to widen the scheme to its whole membership.

Awareness of the issues around equitable briefing has been gathering momentum and is paying dividends. The Bar Council has for some time mandated barristers’ chambers to monitor the allocation of unassigned work coming into chambers by reference to protected characteristics. However, as yet, there is no obligation to monitor assigned work in the same way.

The Institute of Barristers’ Clerks (IBC) sees equitable briefing as the most pressing practice issue for the Bar in 2020. Lucy Barbet, chair of the IBC has welcomed ELA’s scheme and has offered the Institute’s full support to help its promotion. The Employment Law Bar Association (ELBA) is supporting this initiative by publicising it to its members and asking chambers to send information about the ELA monitoring scheme to instructing solicitors when an employment law brief comes in to chambers.

Firms and in-house counsel need to sign up to participate in the scheme, which has been designed in a simple form to make it easy for employment law departments to capture their data. There is still time for more employment firms and teams to join the project and ELA strongly encourages them to do so – the more data the project can collect, the better.

ELA aims to report on the findings in May 2020. To find out how to join the ELA Counsel Instructions Monitoring Scheme please contact ela@elaweb.org.uk.

 

Marian Bloodworth, deputy chair of ELA and employment partner at Kemp Little LLP, and Claire McCann, employment, equality and human rights barrister at Cloisters Chambers and member of ELA’s management committee

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