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BHD and the Bar: Zero Compromise to Zero Tolerance

Latest PostBHD and the Bar: Zero Compromise to Zero Tolerance

At the outset of 2023, I set out five goals for my year as Chair of the Young Bar of England & Wales: 1) Improving the reach and visibility of the Young Barristers’ Committee (YBC); 2) Continuing to engage on fees and remuneration for the young Bar; 3) Putting the YBC front and centre on the profession’s response to the Climate Crisis; 4) Strengthening our international partnerships; and 5) Stamping out bullying, harassment and discrimination of young barristers. My aim has been that everything that the young Bar does this year can be mapped against at least one of these five goals. The last – but conceivably the most important – of the five has been on my radar for some time.

It is a regrettable reality that from very early in my career I became aware that so many of my peers had been the victims of bullying, harassment or discrimination at work. A majority had at the very least observed such behaviour. At that time, these were experiences shared anecdotally amongst pupils and young barristers, an informal support group of friends and colleagues; though I am now sure there were many others who did not feel able to share their own experiences at that time. For myself, I was and continue to be in the ‘fortunate’ position of being someone who has not knowingly been the victim of bullying, harassment or discrimination, a fact I am aware is at least partly explained by my being both male and white (more on this below). But it is a damning reflection on the current state of affairs that those in my position should even consider themselves ‘fortunate’, when in fact this should be a minimum expectation.

When I was elected to the Bar Council in 2020, and subsequently to the YBC, it quickly became clear that what I had heard and observed was supported by statistical data collected across the profession. Today, the two principal sources of this data are the Barristers Working Lives Report 2021 (BWL) and the Life at the Young Bar Report 2022. The former’s headline statistic is that 38% of the profession surveyed reported personally experiencing and/or observing bullying, harassment of discrimination at work, either in person or while working online. Thirty four percent of those members of the young Bar in that same survey had experienced bullying or harassment either in person or online in the preceding two years and of those, 26% had experienced this in person at work and a further 8% online. Another 7% had observed such behaviour but not suffered it themselves, which was similar for all respondents.

The statistics become more stark when they are broken down to refer to particular demographics. Half of young women barristers in the BWL survey had either witnessed or personally experienced bullying or harassment at the Bar, at some point, but only 23% of their male counterparts. Similarly, the 2022 report found that one third of those at the young Bar had experienced bullying or harassment either in person or online in the last two years, with women nearly three times more likely to have experienced it than men. There was a substantial difference in experiences of discrimination with ethnicity, as well as with sex: three times as many individuals of ethnic minority background reported experiencing discrimination as young white barristers, and a similar difference existed between women and men. Furthermore, there were also differences observed in relation to areas of practice – bullying and harassment was most common amongst those practising in criminal law and least common in commercial law. It may well be no coincidence that the former area has been more successful in recruiting candidates from a more diverse pool in terms of gender, ethnicity and socio-economic background.

It is important when we speak about bullying, harassment and discrimination in the profession that we recognise that there are multiple sources, and these present differing challenges and potentially warrant different treatment. The 2022 report found that the two most common sources of either bullying, harassment or discrimination are other barristers and the judiciary. For the young Bar, it was particularly the former and particularly focused on gender. Many women in the focus groups reported that older, white male barristers opposing them would routinely belittle them and attempt to undermine them and their case, as tactics to try to wrongfoot them as an opponent. This sort of bullying, in relation to gender and relative youth or experience, appeared, the report concluded, endemic within the adversarial working culture.

The risks that these findings present to the profession are severe. The headline statistic from the Life at the Young Bar Report was that 1 in 6 of those barristers surveyed were actively seeking to leave the profession. There is no doubt that there were several contributing factors to this (not least concerns over levels of fees and remuneration and work-life balance), but I am certain that a contributory factor to young barristers’ resilience to remain in the profession is their treatment by others. The risks are not just in retention, but recruitment too – how can the Bar credibly seek to attract the brightest and best talents from all backgrounds to the profession, when the evidence says that they have a one third chance of being the victims of bullying, harassment or discrimination?

Fortunately, there is now a critical focus on this issue within the profession. The Bar Council for one has made a suite of resources available to barristers to combat bullying, harassment and discrimination. One of these is Talk to Spot, an online tool to confidentially and anonymously log inappropriate behaviour and concerns, giving the barrister the option of using the confidential log to support a report being made of the conduct concerned. At a minimum, the tool allows the Bar Council to build a picture of what is happening, and identify any patterns of concern. The Bar Council has also actively engaged with other key stakeholders, such as Chambers, workplaces and the Bar Standards Board, to improve their own rules and policies to combat misconduct, as well as open engagement with the judiciary on the specific issue of judicial bullying. Campaigns such as ‘All Rise’ – a project inviting the Bar to step up and actively create a better culture for all barristers by being ‘active bystanders’ – are also taking steps to tackle the issue.

So the present trajectory is a positive one, and the profession mustn’t take its feet off of the accelerator. My personal fear is that the issue becomes one where misconduct is managed within some arbitrary ‘tolerable’ level, but instead we should be unequivocal: the only tolerable level of bullying, harassment or discrimination of our peers is zero.

Going forward, the Bar can continue to take proactive steps to prevent misconduct occurring in the first place. Training at every level for practitioners and judges will help to identify and prevent behaviour at the earliest possible stage. Reporting tools are being appropriately beefed up and can continue to be so. The data tells us that it is important that these tools are available outside of processes within a barrister’s Chambers or workplace – the Young Bar Report found that most reporting of incidents was to another barrister, although this did lead to a satisfactory conclusion for about 60% of these cases. Around one third of cases were reported to a chambers or employer, although this had only led to a satisfactory conclusion in about half of the cases. Resolution of these incidents clearly needs to be better and the position has to change so that there are no longer fears that reporting discrimination may lead to negative consequences for those reporting, something that many surveyed – and I have observedanecdotally – have reported being the biggest impediment to escalating a concern.

Ultimately, the Bar needs to inspire a culture where everyone involved takes a proactive, zero-tolerance approach to misconduct. The Young Bar Report’s conclusion on this issue is one I readily adopt: “If the adversarial culture of the law remains, the professional culture around it needs to shift so that significant groups in the workforce do not have to put up with abusive behaviours from some others.” I am confident that there is a strong desire and ability within the profession to make the changes necessary to stamp bullying, harassment and discrimination out of the day-to-day lives of many barristers. I will do what I can this year through the YBC to achieve that.

Michael Harwood, Chair of the Young Bar of England & Wales

 

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