Female Barristers Still Face Discrimination At Work

Even lawyers themselves are not immune to discrimination at work.

The Bar Standards Board (BSB), the regulators of the barristers profession, recently carried out a survey of over 1,300 female barristers. Following the results received, the legal regulator is to write to every Chambers in England & Wales, to urge them to improve their compliance with equality rules and laws.

The results from the anonymous online questionnaire answered by nearly a quarter of all female barristers found that discrimination and sexual harassment were still very much present at the Bar.

The survey found that recruitment practices were generally found to be fair. Similarly, an awareness of parental leave and maternity leave policies was said to be very high, with most chambers surveyed acting in line with the relevant legislation. Despite that, many women at the bar felt that actually taking maternity leave had a negative impact upon their career, and the perception of them as dedicated to their profession.

It was in the treatment of many female barristers, and in the response to such issues, that problems were found. Two – fifths of those surveyed said that they had suffered a form of harassment. Only one – fifth reported it: “concern about the impact on their career was the most common reason cited by respondents for not reporting harassment.” Furthemore, “half of those survey participants who did report harassment were not satisfied with the response.”

Among the comments recorded by female barristers in the survey response were: “a male solicitor told me in exchange for favours he could give me work.” Another female barrister stated that “I experienced extreme sexual harassment during pupillage from one of my pupil supervisors,” with another response being that “it was an occupational hazard that senior males might act inappropriately with young women at the bar.”

With regards to direct gender discrimination, the survey found the same pattern. On average, more than two in every five female barristerssaid that they had experienced discrimination. Again, only half that number actually complained. Again, a fear that it would negatively impact upon their careers was cited as the main reason for not making a complaint.

One response recorded for discrimination was that a “solicitor said to my clerks that he would not instruct a woman. My clerks protested. He apologised. My male colleagues refused to do the piece of work.” Another barrister said that “women in my chambers are pigeon-holed into the lower paid, publicly funded ‘care’ work. They are seen by the clerks as the secondary earners in their families, even though this is often not the case.”

Despite the gender equality of 2016, and the legislation and regulations concerning gender based discrimination and harassment, the result was disappointing for the BSB. Despite the Equalities Act (2010), and the work of women such as US First Lady Michelle Obama, it is sad and shocking that such discrimination still occurs at all, in any occupation or workplace, in 2016.

In response to the anonymous survey, Dr Vanessa Davies, Director General of the BSB, said that the “equality rules were intended in part to improve the retention of women at the bar but, as we know, men outnumber women by two to one and this has not changed significantly over the last six years … We cannot tolerate a situation where women are treated unfairly in the workplace. Lack of diversity and discriminatory working culture and practices impair the bar’s ability to meet the needs of the public and could deter potentially great candidates from pursuing a career at the Bar.” Such sentiments have been echoed in various forms over the years by the Association of Women Barristers, and similar groups.

Despite practising law, even lawyers themselves are not immune from the law. In a professional that should show the highest standards, and should uphlold the law, to be in breach of that very law with regard to equality and discrimination legislation hardly does the profession any favours. In this day and age, with women occupying ever more senior positions in business and government, and with more frequency than in tears gone by, such behaviour by some members of the Bar is also unacceptable.

The BSB has yet to comment in what actions it will take in response to the survey. The Chair of the Bar, Chantal-Aimée Doerries QC, stated in response that some “of the experiences documented by the BSB are historical, but there is no room for complacency. This profession, like others, continues to face challenges with harassment and discrimination.

“Although the position is changing for the better, women still account for a very small number of members of the senior judiciary, and they make up only 13% of all QCs. The judiciary and the legal profession from which it is drawn should reflect the communities they seek to serve, and that is why the Bar Council is committed to doing all it can to support women at the bar at all stages in their professional careers at the bar. We need to aim for a profession of all, and for all.”

The Unseen Disabilities & Their Rights

Disability is perceived and stereotyped in certain ways. That is not always the case, as there are those disabilities  you cannot see, or are not that evident. Those disabilities which cannot be seen overtly are conditions related to mental health, which can be just as debilitating and devastating as a physical disability.

Disability is defined legally in the Equality Act (2010), and is legally protected from discrimination. A person is disabled under the Act if they have

a physical or mental impairment that has a ‘substantial’ and ‘long-term’ negative effect on your ability to do normal daily activities.

In this context, the Act defines substantial and long term as

 ‘substantial’ is more than minor or trivial, eg it takes much longer than it usually would to complete a daily task like getting dressed

‘long-term’ means 12 months or more, eg a breathing condition that develops as a result of a lung infection

In many cases, living with a serious mental illness can fall under those legal definitions. As such, having a mental illness can be classed as a disability. This often gives those suffering a mental illness the same legal rights and protections under discrimination and equality laws as anyone else with a disability.

There are many mental illnesses which can seriously and negatively impact and affect someone’s life – and that of their families. More common mental illnesses seen are:

Dementia

Depression

Bipolar Disorder

Obsessive Compulsive Disorder (OCD)

Schizophrenia

There are of course many other mental conditions. Indeed, there are some learning conditions (such as autism and Asperger’s) which in some cases can also be classed as a disability.

Unlike with a physical disability, it can be hard to diagnose or quantify a mental illness. For every mental condition, there is a great range in both symptoms and severity. How a mental illness will impact upon a person’ s life and well being varies from person to person. It can be very hard to apply rigid legal definitions and terms to something as varying as a mental illness.

It must also be remembered that mental illness has only recently seen a greater deal of awareness, and public campaigns designed to highlight mental illnesses. There is still sadly a lack of public awareness regarding such matters- and regretfully still a certain stigma attached to many mental illnesses. It is only in very recent years that that attitude is slowly starting to change, with people being more open about, and more understanding about, mental illnesses. It was in the 1990’s that a similar change was seen regarding physical disabilities- with the result over time being increased awareness and understanding. Legally, that translated into greater rights and protections from discrimination for those physically disabled. Probably, in a similar way,  mental health issues will see greater understanding soon, along with a greater rights and protections in their own right. Until then, those suffering from mental illnesses in many cases (but in no means all; there are some legal rights afforded the mentally ill) will have to rely, if applicable, upon the Equality Act 2010, and the legislation that prevents discrimination for the disabled.

 

Progress?

Despite that, the Court of Protection exists to look out for the rights of those who are deemed to have a lack of mental capacity, whether due to a mental illness or another reason. Those deemed insane by the courts (or in some cases considered to have diminished mental capacity) are also afforded some protection and rights, for their own protection, and for the protection of others. However, those laws, rules and rights are afforded to those who have diminished mental capacity and ability – not to those who have a mental illness per se. Further, those laws are there to protect them and others- and not to protect their legal and moral rights, or to prevent them from being discriminated against, in whatever form the discrimination may take.

Although recent years have seem advances such as the Court of Protection, and charities such as Mind raising increased awareness of mental heath issues, there still remains great social and cultural stigma attached to mental illnesses. This can often, intentionally or unintentionally, translate into direct or indirect discrimination against the mentally ill.

Mental illness is often, legally and practically, classed as a disability. As such, in many cases the mentally ill have similar rights to those who are physically disabled. Mental illness is essentially often a disability- but just one that can not often be seem, or quantified. However, those who suffer, suffer the same pain, and often indignities and injustices, as those who are physically disabled.

There are current legal rights and protections afforded to the mentally ill – but maybe those rights are not sufficient as greater understanding and awareness of the issue is raised.

Legal Disability Discrimination?

Disability discrimination can occur in various forms – even in ways absolutely not intended or considered.
Take for example, Disability Living Allowance (DLA). There are various types and forms of the main DLA allowance, all with their own criteria and tests. DLA can be an absolute lifeline to those who really need it. Whilst available to those who really need it following various assessments and rules – it can just as easily be withdrawn, in accordance with the Department of Work And Pension’s (DWP) rules and procedures regarding DLA. A case before the Supreme Court in 2015 raised this very issue – and found that disability discrimination was, bizarrely, partially behind a withdrawal of DLA.

The case of Mathieson v Secretary of State for Work & Pensions (2015) UKSC47 centred around a severely disabled boy born with complex medical conditions in 2007. Cameron Mathieson required a great deal of care due to the complex and varied nature of his disabilities. In 2010, Cameron was admitted into a specialist unit of the Alder Hay Hospital in Liverpool. He was to remain there until 2011. By this time, his parents had relinquished their business to provide full time care for Cameron, and to look after his siblings. During the time of his lengthy hospital stay, his parents still remained very active in his care, and were essentially still his primary caregivers. As such, they were quite dependent on DLA, and similar benefits and awards.
Cameron Mathesion had been awarded in line with Sections 71 to 76 of the Social Security Contributions And Benefits Act (1992) (The Benefits Act), the highest rate of the various disability benefits he was deemed eligible for. Of course, the many was paid to his parents, and administered by them on his behalf. Applying the rules set out in the various Acts of Parliament and DWP rules and guidelines, the DWP decided to suspend payment of the top rate of allowances in November 2010. During the rest of his stay in Alder Hay, Cameron Mathieson’s family suffered a financial shortfall or around £7,000 as a result. After Cameron was discharged, the parents appealed this.
2015 saw the case end up before a five judge hearing in the Supreme Court. Quoting from Lord Wilson’s leading verdict at paragraph 12:

The regulations in issue in this appeal are regulations 8, 10, 12A and 12B of
the Social Security (Disability Living Allowance) Regulations 1991 (SI 1991/2890)
(“the 1991 Regulations”). They were made pursuant, in particular, to section 85(1)
of the 1975 Act and to section 5(1) of the 1991 Act, following Parliament’s
affirmative resolution pursuant to section 12(1) of the later Act. Regulation 8(1)
provides that, subject to regulation 10, a person is not entitled to receive such DLA as is referable to the care component for any period during which he is maintained free of charge while undergoing medical or other treatment as an in-patient in an NHS hospital. But para 2 of regulation 10 provides that, in the case of a person aged under 16, regulation 8 shall not apply for the first 84 days of any such period; and para 1 provides that, in the case of any other person, regulation 8 shall not apply for the first 28 days of any such period. Regulations 12A and 12B make provision identical to regulations 8 and 10 in respect of receipt of such DLA as is referable to the mobility component. The regulations in force prior to 1991 in relation to payment of attendance allowance and mobility allowance had also provided for its suspension once the recipient had been in hospital for more than 28 days. But they had made no distinction between adults and children: the extension for children aged under 16 from 28 days to 84 days was therefore introduced in the 1991 Regulations.

In court, Mr and Mrs Mathieson invoked Article 14 of the Human Rights Act, a protection against discrimination. Further legal arguments were advanced to support the view that the 84 day rule had been unfairly and unjustly invoked and should be abrogated in this instance. With the DWP conceding on several legal issues, but also appealing at every step, it was found that the 84 day rule was often morally unfair.  The parent’s argument was that the 84 day rule should be applied through the framework of existing domestic and international legislation: such legislation that prohibits discrimination, and considers the best interests and rights of the family and the child.
In their concurring judgement, the Judges agree that in this particular case, the claimants legal and human rights were indeed violated by the suspension of the DLA payment. However, the legal arguments for and against are finely balanced, and both are at pains to state that it is due to the claimant’s own particular circumstances that the judgement has been made.
This serves to illustrate the power of words, and their meaning. Although never intended, following the legal reasoning set out by all sides, disability discrimination was legally found to be behind the matter in this particular case.
To further illustrate the unintentional power of words regarding discrimination another case to refer to is Moyna v Secretary of State for Work and Pensions [2003] UKHL 44.
A potential DLA claimant was not  considered eligible for DLA following g application of the ‘cooking test’ in use by at the time (used to assess whether a claimant could cook a meal by themselves, and how much assistance they would need for that household task), and other similar home assessment tests.  The narrow framework of the test, and the way the questions were set out and phrased led her to argue that the Tribunal had erred in law.
Upon making its way to the then House of Lords, consideration was given to the nature of words. After discussion the application of Brutus v Cozens (1973) regarding the meaning of words, amidst other legal arguments, the House of Lords unanimously dismissed the claimant’s appeal, and restored the verdict of the Tribunal. The Tribunal was found not to have erred in law in its application of the various tests used at the time for potential DLA claimants – including the cooking test.
Those two cases just serve to illustrate that even the laws designed to help and protect and look after those with disabilities can, quite unintentionally, have quite the opposite affect.