Flexible working and the bar

When women leave the bar, do they do so as a result of a ‘lifestyle choice’?

I’ve practised as a discrimination lawyer for 20 years now, and in that time I’ve seen public attitudes change, with the introduction of more flexible working practices which have now become the norm in many fields of professional life. Sadly, the law in general - and the bar in particular - seems to lag several decades (if not centuries) behind. 

When I had my first child 16 years ago, part-time working at the bar was virtually unheard of and when I proposed working four days per week on my return from maternity leave, one senior colleague snorted and told me ‘you won’t last two weeks’. 

I’m proud to say that by virtue of some serious juggling, brilliant clerks and supportive colleagues, my four-day week is still going strong – and that many more barristers (of both sexes) are now able to work part-time (in some cases just one or two days per week) in order to fulfil caring responsibilities (to children or elderly parents) or pursue other projects such as writing books or academic research. 

Not only have I been able to work part-time, but I have on occasion even persuaded tribunals to sit part-time in order to deal with my childcare commitments. Two long sex discrimination trials in which I was counsel when my daughter was small were heard by employment tribunals sitting Monday to Thursday only, with my clients’ consent, in order to fit with my childcare commitments. This is an example of good practice which, as has been suggested elsewhere, could and should be more widely followed.

So, there has been progress. But we know that women are leaving the bar in vast numbers because of what Lady Justice Hallett has called the ‘horrific work-life balance’ which deters many talented women from staying long enough to reach the judiciary. In my experience, for every woman who manages to stay on after having children, there are many more who decide to leave. 

Among my own close friends, there are hugely talented and brilliant women who have left to retrain in other professions, such as teaching, with more child-friendly hours and working patterns; who have been forced to leave because they are single parents who cannot afford the cost of living in central London (including crippling childcare costs); or who have left the bar because of the triple discrimination of being a ‘working mother’ in a wheelchair.

Among the chief causes of the problems with work-life balance at the bar is the attitude of the judiciary. One of the first cases I did upon returning to chambers after the birth of my daughter was a three-week sex discrimination trial involving the calling of multiple witnesses and raising a number of difficult points of law. At 4pm on the penultimate day of the trial, the employment judge decided that he required full written closing submissions from both parties at 10am the following morning. I had a tiny baby and was still breastfeeding. I had no choice but to stay up all night to produce 30 pages of closely argued submissions. 

More recently, in a case in the Court of Appeal, the parties were provided with a draft judgment the afternoon before hand-down and asked to provide detailed submissions on a complex point about costs by 9am. I was in court on another matter the following day, and the only way I could comply was to get up at 4am to provide what the Court of Appeal wanted.

There is only so much of this sort of thing that one can take if one is a human being (of either sex) who has responsibilities to others to fulfil outside the workplace. Such responsibilities cannot simply be put on hold, nor can they always be delegated to paid carers – as any parent of a troubled teenager will know. 

The court’s attitude to counsel (of either sex) with childcare commitments is not always enlightened either. Recently a civil hearing in the High Court overran and the judge asked both counsel if they were available the following day to continue the hearing. The (male) counsel on the other side told the judge that his wife had just given birth and that he was required to take care of his two-year-old child the following day, so was unavailable.

The judge listed the case, and required his attendance, nevertheless.

I am absolutely sure that the judges in the examples I have given - which could be multiplied indefinitely by colleagues (past and present) of both sexes - did not intend to create difficulties for counsel. Still less did they intend to create a situation in which counsel felt so overwhelmed as to consider leaving the bar altogether for another career. 

But there is a real problem of complacency at the bar and among the judiciary. A few years ago I was asked to attend a Bar Council event entitled ‘the glass ceiling at the bar’. I raised the concern that women (particularly those working part-time or with childcare commitments) were deterred from applying for silk because the system looks for, and rewards, those with a large caseload and a large number of hours in court, that concern was met with incomprehension by the panel. ‘Oh, we’ve already addressed that,’ they said airily. 

In this area too, those who are within the system, and are rewarded by it, struggle to see what needs to change in order to achieve equality of opportunity.

We are all - male and female, young and old - human beings as well as lawyers. There will be times for all of us when we need to put our human responsibilities first. The systems which favour, or require, people in our profession to conform to an old-fashioned long-hours culture need to change. 

We can be excellent barristers without sacrificing our family lives. And we need to get that message out to the next generation - who will demand a better work-life balance than the bar currently provides - so that we can attract the most brilliant people, in all their diversity, to the bar.

Emma Dixon is a barrister at Blackstone Chambers