(Published in COUNSEL magazine, December 2022)
The momentum for change and vital ingredients in an anti-bullying chambers.
By Orlagh Kelly
It’s a shocking statistic that everyone who cares about the people in our profession – and the future of the Bar – will know: 38% of barristers have experienced or observed bullying, harassment, or discrimination at work (Barristers’ Working Lives 2021, Bar Council). With more than 17,000 barristers currently in practice, that is 6,460 lives (and their loved ones’) affected. If we add in the experience of chambers’ staff, this figure rises further.
I recall my own experience as a ‘baby barrister’ 20 years ago. Only a few weeks into being on my feet, a district judge took great offence that I addressed the court as ‘Your Worship’ instead of ‘Your Worships’ as he felt it showed great disrespect to his lay colleagues on the panel. I endured ten minutes of severe humiliation as he lectured me on my mistake in front of 50 or so solicitors and barristers. I can still feel it to this day. I didn’t know at the time that it was routine behaviour for this judge and dealing with it was just largely accepted as ‘part of the job’. As my career continued, I frequently observed this type of bullying of colleagues by judges, counsel and solicitors, and often wondered why we as a profession were expected to simply put up and shut up. It is totally unacceptable in any environment.
Creating a genuine and positive culture in any workplace can be extremely challenging. In Silicon Valley, for example, much time is spent brainstorming the ‘vision, mission, and values’ of a tech business in an effort to create the right culture for their people at a very early stage in the business. Ours is long-established, with a culture ingrained in the past, entrenched in tradition, and four key characteristics that can exacerbate the problem (Bullying and Harassment Report, Bar Standards Board, October 2022):
- the adversarial nature of the job;
- learned behaviour passed down through generations;
- fear of reporting or confronting the behaviour due to impact on career; and
- self-employment status of most barristers.
Battle half won
We now have recognition of the problem and a growing appetite for, and expectation of, change.
From a profession-wide perspective, a number of extremely positive initiatives have been implemented. The Bar Council has launched ‘Talk to Spot’, an online tool which allows barristers to anonymously record and, if they wish, report unacceptable behaviours. The Wellbeing at the Bar Working Group has been doing groundbreaking work for a number of years to support the profession and make improvements in this area. Other examples of positive initiatives include work by the Circuits and Specialist Bar Associations (eg the Family Law Bar Association) as well as practitioner-led initiatives such as Behind the Gown, All Rise and the Kindness at the Bar project (see ‘Collective action on anti-bullying’, Sam Mercer, Counsel, December 2022).
Given that most barristers are likely to discuss an issue with their chambers before their regulator, I spoke with Nick Hill, former Chair of the Institute of Barristers’ Clerks (IBC), a senior clerk and 35-year veteran of working with the Bar, about the crucial elements that, if executed well, can support chambers to create and maintain a respectful and inclusive culture incorporating robust anti-bullying.
He recalls: ‘The IBC has spent a significant amount of time focusing on wellbeing. I was struck by a statistic that being spoken to in a negative fashion was likely to stay with someone for five times longer than if they received a positive comment. If a member of chambers consistently and persistently speaks negatively to a clerk or a colleague it can completely drive that person’s self-worth into the ground and deeply affect their mental health, ability to thrive at work and all the follow-on consequences in their home life.’
Nick is, however, optimistic for the future of the Bar: ‘Younger, more diverse barristers are joining the profession who have learned about unacceptable behaviours since school. They are core to driving change. They are generationally different, and that can only be a good thing.’
What makes an anti-bullying chambers?
Nick and I identified four key elements:
A robust policy
Develop and implement anti-bullying and harassment policies, keeping them under review to ensure that they remain fit-for-purpose. rC110(3)(j) requires that chambers has a written anti-harassment policy that as a minimum:
- states that harassment will not be tolerated or condoned and that employees, members of chambers, pupils and others temporarily in chambers such as mini-pupils have a right to complain if it occurs;
- sets out how the policy will be communicated;
- sets out the procedure for dealing with complaints of harassment.
A model anti-harassment policy can be found in the BSB Handbook Equality Rules Supporting Information (s 13, p 43)). Have a look at your chambers’ policy and compare it those of other chambers. One set has gone further and adopted an external bullying policy (see ‘Bullied in court? What chambers can do about it’, Eleanor Laws KC, Oliver Mosley and Kyan Pucks in Counsel June 2022).
Although most chambers have equality and diversity policies in place, including an anti-harassment policy, and undertake activities such as training to ensure that these policies are put into practice, YouGov research for the BSB found a ‘huge variation between chambers in how well equality and anti-discrimination policies and rules are implemented, even if most chambers do have such policies and rules on paper’.
The importance of buy-in of senior leaders in chambers to ensure that the Equality Rules are implemented effectively cannot be overemphasised. A strong head of chambers and management committee who have a zero-tolerance attitude to bullying or harassment and are motivated to call out, confront and deal with bad behaviour are essential. More often than not, however, leadership skills within chambers will dictate the culture, adherence to policy and willingness to report. Barristers who lead chambers do so as a result of an election, rather than rise through structured leadership programmes such as those available to solicitor colleagues. There may be gaps in knowledge and skills which can undermine chambers success in this area, so make sure that anyone in a position of responsibility in chambers is fully ‘skilled up’ to give them maximum opportunity to deliver in their role.
Awareness through specificity
There is an argument that some people who engage in bullying behaviour do not even know they are doing it. It’s simply ‘part of the job’, a learned behaviour that has become acceptable over time. Key to breaking down these behaviours is making sure everyone knows what ‘bad behaviour’ looks like. Set out lots of examples, lots of details, so there can be no doubt in anyone’s head. Those on the receiving end must feel that they are not ‘overreacting or too sensitive’. Observers need to be able to immediately identify and intervene. Perpetrators can no longer hide behind the excuse that it’s ‘just a part of the job’. Raise awareness for all members and staff with frequent presentations, workshops and training to show what bad behaviour is, and how to address it in the moment.
If you’ve seen or been involved in an unpleasant situation you should be able to talk to your equality and diversity officer (most chambers will have one), a mentor or colleague for advice. You can also call in confidence the Bar Council Equality and Diversity Helpline on 020 77611 1426. Note that any person you speak to via the Helpline has an exemption from the requirement to report alleged misconduct (rC66), an obligation imposed on barristers by the BSB and a potential reason why some may turn a ‘blind eye’.
Having a mentoring programme or other ways to introduce junior members to more senior members is vital. In a world where so many work online, and remotely, chambers should ensure that professional relationships and friendships are protected, nurtured and keenly developed. Consider running weekly drop-in events at chambers such as afternoon teas to facilitate this.
Despite some very difficult experiences during my years of practice, barristers and clerks continue to be some of the loveliest and most inspiring people I have ever met. There is much collegiality, allyship and instances of friendship to recognise and promote – in conjunction with implementing robust anti-bullying initiatives as described above. Please speak up and play your part.