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Discrimination claims against chambers give a fascinating glimpse into the unique way they operate, as Garden Court Chambers recently experienced. In the past, chambers benefited from a reluctance to call out discrimination and harassment publicly for fear of career damage. Now there is noticeable increase in the willingness to challenge the cultural norms and the way chambers, its members and employees are managed, which is often somewhat outdated compared to other businesses and organisations. This makes chambers and their members particularly vulnerable to criticism by Employment Tribunals. We set out below the key risk areas and our recommendations as to how to address them.
In many chambers, key management decisions, including about grievances brought by barristers or employees about discrimination, require the involvement of all members of chambers. Aside from taking up a lot of busy people’s time, this creates much avoidable risk. Discrimination claims can be brought against individual decision-makers who can be personally liable for compensation awarded. The more people involved in making a decision, the more potential targets.
Both the fact and content of a complaint are likely to be confidential and extremely sensitive but any meaningful involvement of all members in the decision-making process necessitates the disclosure of this information to them all. This has obvious complications from a GDPR perspective and may trigger claims for constructive unfair dismissal by employees concerned. It may also discourage speaking out about discriminatory treatment which arguably means that chambers are not meeting the requirement to have effective policies to deal with such issues.
Decision-making by committee makes it harder to articulate the rationale for the decision and increases the risk of irrelevant considerations making their way into the decision-making process. This absence of a clear, finite rationale for a decision makes the defence of any claim challenging. In addition, allowing time for all members to have an opportunity to consider the evidence and reach a decision invariably prevents matters being dealt with promptly in line with best practice.
Chambers should adopt policies consistent with best practice principles and guidelines, including those set out in the ACAS Code. This entails delegating authority to a person or a small committee to deal with grievance and conduct issues. We are seeing sets increasingly delegating authority to take decisions to manage these risks and concerns, particularly as they grow.
Banter is not confined to clerks’ rooms but is often prevalent in them. It remains a common misconception that if it’s just ‘banter’, it’s not discrimination. What some people find amusing others will find to be offensive harassment. The bar to proving harassment is a low one. Conduct does not need to be intentional or targeted at the complainant. Even a one-off comment can amount to harassment if it creates an intimidating, hostile, degrading, humiliating or offensive environment. Claims can be expensive particularly if the offensive conduct relates to protected characteristics eg sex, race, religion and belief, sexual orientation, age or disability, with potential awards for uncapped loss of earnings and for injury to feelings as well as causing huge personal embarrassment for the perpetrators and chambers.
Banter can be a regulatory issue too. Under the Bar Standards Board’s Code of Conduct barristers must not discriminate unlawfully against any person and must take reasonable steps to manage their practice or carry out their roles in compliance with legal and regulatory obligations. That arguably amounts to a duty on every member to ensure chambers is a discrimination-free environment. The government confirmed last year that it will introduce a new duty on employers to proactively prevent sexual harassment. This duty may well extend to barristers personally.
Liability for the acts of colleagues in chambers may be avoided if all reasonable steps have been taken to prevent harassment. This could include having written policies articulating the standards expected of everyone, providing meaningful training which is regularly updated and demonstrating that complaints of harassment and other forms of discrimination are taken seriously and dealt with promptly.
In our experience, many chambers have a tendency to over-engineer people-related processes, particularly those of grievance or disciplinary nature, turning them into complex, quasi-judicial processes. In practice, this often happens when a particular issue arises and the set does not have in place a formal policy for dealing with the situation, leading to a process being designed in quick order, without specialist HR input. Invariably, these are convoluted and involve more individuals than necessary.
Put in place core people-related processes before you need them but keep them simple. Disciplinary and grievance procedures should be consistent with the principles in the ACAS Code of Practice. Their main purpose is to provide a framework for resolving issues arising in a workplace. They are not intended to be akin to an adversarial court or tribunal process. People-related policies and processes should help, not hinder, the smooth running of chambers, encourage good practices and reduce risk.
The relative lack of movement to the Bar from those who have spent material periods of time in other professions and sectors means that there can be a lack of diversity of experiences in chambers. Many members will not have recent, or indeed any, experience of other workplaces or being an employee or manager. Working at the Bar generally involves a greater degree of autonomy and less teamwork than working elsewhere. This means that many at the Bar will not have sight of good working practices adopted in other parts of the economy. One consequence of this is that the approach to managing people issues can be wide of the mark when it comes to management best practice, creating claims risk which could easily have been avoided. Another is that appointments into management roles from outside the Bar in an effort to modernise frequently fail because members complain that the new hire ‘doesn’t get’ the unique working environment.
When hiring professional management, recognise the value that the insights and perspectives gained through working in other sectors and professions, in different workplace cultures, can bring to chambers, particularly when the working world is changing rapidly. In particular, that new approaches can reduce the risk of claims.
Chambers are different to many other workplaces. In some respects they are unique. We have seen how this difference can lead to some members being of the view that certain elements of good practice or even certain legal obligations cannot or should not be applied in a chambers context.
While Employment Tribunals are accustomed to considering the wider context of any dispute, including the size and resources available to an organisation, having small numbers of staff and being different to many other workplaces is not a trump card that can be played to avoid employment obligations. Tribunals will be aware that chambers have both the intellectual capacity and the experience to understand the importance of complying with legal obligations and valuing good practice. Tribunals are also aware that many sets are well-resourced financially and in a position to take independent legal advice.
Accept that while members are not employees and the chambers work environment is unique, it is still a workplace and an employer of staff. No member however senior is above the law in this regard. A consequence of this is a growing list of responsibilities and expectations which professional management can help you meet, freeing up members to play to their own strengths as counsel.
Joanna Chatterton is a partner at law firm Fox Williams LLP. She specialises in advising barristers chambers and professional services firms on employment and discrimination issues.
David Murphy is a partner at law firm Fox Williams LLP. He specialises in advising barristers chambers and professional services firms on employment and discrimination issues.
Discrimination claims against chambers give a fascinating glimpse into the unique way they operate, as Garden Court Chambers recently experienced. In the past, chambers benefited from a reluctance to call out discrimination and harassment publicly for fear of career damage. Now there is noticeable increase in the willingness to challenge the cultural norms and the way chambers, its members and employees are managed, which is often somewhat outdated compared to other businesses and organisations. This makes chambers and their members particularly vulnerable to criticism by Employment Tribunals. We set out below the key risk areas and our recommendations as to how to address them.
In many chambers, key management decisions, including about grievances brought by barristers or employees about discrimination, require the involvement of all members of chambers. Aside from taking up a lot of busy people’s time, this creates much avoidable risk. Discrimination claims can be brought against individual decision-makers who can be personally liable for compensation awarded. The more people involved in making a decision, the more potential targets.
Both the fact and content of a complaint are likely to be confidential and extremely sensitive but any meaningful involvement of all members in the decision-making process necessitates the disclosure of this information to them all. This has obvious complications from a GDPR perspective and may trigger claims for constructive unfair dismissal by employees concerned. It may also discourage speaking out about discriminatory treatment which arguably means that chambers are not meeting the requirement to have effective policies to deal with such issues.
Decision-making by committee makes it harder to articulate the rationale for the decision and increases the risk of irrelevant considerations making their way into the decision-making process. This absence of a clear, finite rationale for a decision makes the defence of any claim challenging. In addition, allowing time for all members to have an opportunity to consider the evidence and reach a decision invariably prevents matters being dealt with promptly in line with best practice.
Chambers should adopt policies consistent with best practice principles and guidelines, including those set out in the ACAS Code. This entails delegating authority to a person or a small committee to deal with grievance and conduct issues. We are seeing sets increasingly delegating authority to take decisions to manage these risks and concerns, particularly as they grow.
Banter is not confined to clerks’ rooms but is often prevalent in them. It remains a common misconception that if it’s just ‘banter’, it’s not discrimination. What some people find amusing others will find to be offensive harassment. The bar to proving harassment is a low one. Conduct does not need to be intentional or targeted at the complainant. Even a one-off comment can amount to harassment if it creates an intimidating, hostile, degrading, humiliating or offensive environment. Claims can be expensive particularly if the offensive conduct relates to protected characteristics eg sex, race, religion and belief, sexual orientation, age or disability, with potential awards for uncapped loss of earnings and for injury to feelings as well as causing huge personal embarrassment for the perpetrators and chambers.
Banter can be a regulatory issue too. Under the Bar Standards Board’s Code of Conduct barristers must not discriminate unlawfully against any person and must take reasonable steps to manage their practice or carry out their roles in compliance with legal and regulatory obligations. That arguably amounts to a duty on every member to ensure chambers is a discrimination-free environment. The government confirmed last year that it will introduce a new duty on employers to proactively prevent sexual harassment. This duty may well extend to barristers personally.
Liability for the acts of colleagues in chambers may be avoided if all reasonable steps have been taken to prevent harassment. This could include having written policies articulating the standards expected of everyone, providing meaningful training which is regularly updated and demonstrating that complaints of harassment and other forms of discrimination are taken seriously and dealt with promptly.
In our experience, many chambers have a tendency to over-engineer people-related processes, particularly those of grievance or disciplinary nature, turning them into complex, quasi-judicial processes. In practice, this often happens when a particular issue arises and the set does not have in place a formal policy for dealing with the situation, leading to a process being designed in quick order, without specialist HR input. Invariably, these are convoluted and involve more individuals than necessary.
Put in place core people-related processes before you need them but keep them simple. Disciplinary and grievance procedures should be consistent with the principles in the ACAS Code of Practice. Their main purpose is to provide a framework for resolving issues arising in a workplace. They are not intended to be akin to an adversarial court or tribunal process. People-related policies and processes should help, not hinder, the smooth running of chambers, encourage good practices and reduce risk.
The relative lack of movement to the Bar from those who have spent material periods of time in other professions and sectors means that there can be a lack of diversity of experiences in chambers. Many members will not have recent, or indeed any, experience of other workplaces or being an employee or manager. Working at the Bar generally involves a greater degree of autonomy and less teamwork than working elsewhere. This means that many at the Bar will not have sight of good working practices adopted in other parts of the economy. One consequence of this is that the approach to managing people issues can be wide of the mark when it comes to management best practice, creating claims risk which could easily have been avoided. Another is that appointments into management roles from outside the Bar in an effort to modernise frequently fail because members complain that the new hire ‘doesn’t get’ the unique working environment.
When hiring professional management, recognise the value that the insights and perspectives gained through working in other sectors and professions, in different workplace cultures, can bring to chambers, particularly when the working world is changing rapidly. In particular, that new approaches can reduce the risk of claims.
Chambers are different to many other workplaces. In some respects they are unique. We have seen how this difference can lead to some members being of the view that certain elements of good practice or even certain legal obligations cannot or should not be applied in a chambers context.
While Employment Tribunals are accustomed to considering the wider context of any dispute, including the size and resources available to an organisation, having small numbers of staff and being different to many other workplaces is not a trump card that can be played to avoid employment obligations. Tribunals will be aware that chambers have both the intellectual capacity and the experience to understand the importance of complying with legal obligations and valuing good practice. Tribunals are also aware that many sets are well-resourced financially and in a position to take independent legal advice.
Accept that while members are not employees and the chambers work environment is unique, it is still a workplace and an employer of staff. No member however senior is above the law in this regard. A consequence of this is a growing list of responsibilities and expectations which professional management can help you meet, freeing up members to play to their own strengths as counsel.
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