Practising what you preach
13 November 2000
Employment practice is a serious issue at the bar. This year, Four New Square paid out £40,000 to a receptionist claiming racial harassment, and there was a four-hour disciplinary hearing before three silks at 4-5 Gray's Inn Square over the position of the operations manager's name on the set's christmas card (which would have cost only £180 to reprint).
The list goes on - from last year's court action on pupils' eligibility for the minimum wage, to the dismissal of a chambers clerk after being linked to five defections.
It is the status of pupils that best highlights the confused nature of employment at the bar. According to a ruling by the Court of Appeal, for the purposes of the National Minimum Wage Act they are not "workers" as such. The judgment was met with dismay by students, but with relief by many smaller chambers, which simply cannot afford to fund all pupillages.
In 1997-1998, nearly a third of all pupillages were non-funded. This situation may be about to change, as sources close to the Bar Council claim that it is likely to adopt the minimum wage as part of its procedure rules at a meeting scheduled for later this month. Bar Council chairman Jonathan Hirst QC believes the decision is still open to debate. He says: "My own personal view is that we ought to pay pupils a sum that is close to the minimum wage, but most chambers already pay much more. However, the matter is in the hands of the Bar Council."
As chambers grow and develop a more corporate structure, they face other problems. Many sets, for example, are still without a formal constitution. Fewer still have any measures in place to terminate tenancies or even, in some cases, discipline barristers.
As one barrister says: "Barristers are pretty much unsackable." Some might argue that this is quite right - after all, they are self-employed. But if a chambers wants to be run as a business and for whatever reason a particular barrister is not contributing to that business, then surely there must be measures in place to discipline and, as the ultimate sanction, terminate their tenancy.
Doughty Street Chambers has had a disciplinary procedure in place for several years. Practice manager Christine Kings says: "Doughty Street has the ultimate authority to expel a tenant if the situation is deemed to be serious enough. In our 10-year history they've only reached the stage of suspending a tenant once."
The disciplinary procedure was the result of a staff survey designed to develop ways of improving the service on offer to instructing solicitors. "After the introduction, complaints plummeted. The idea began with staff who said that tenants should be subject to the same disciplinary procedures as staff," says Kings.
St Philip's Chambers in Birmingham is following Doughty Street's lead by introducing termination provisions into its new constitution, which is currently being devised. However, many still argue that such practice does not suit the bar and that the Bar Council is not prepared to insist on chambers having termination provisions, although BarMark does at least require sets to have a constitution.
Head of the Bar Council's professional standards and legal services department Mark Stobbs says: "The Bar Council takes the view that if there is a standard termination notice set in stone, then it's unlikely to suit all chambers. It recommends chambers offer a remedy that is both fair and reasonable."
Chambers face all sorts of barriers to running themselves as businesses. Barristers are allowed to join the bench without prior notice or without completing their cases, which can have an adverse effect on any set's income. Recently, Nicholas Patten QC of 9 Old Square left the high-profile Thyssen case in Bermuda to join the bench (The Lawyer, 11 September), and 4-5 Gray's Inn Square joint head of chambers Duncan Ouseley QC left his set for the bench shortly after merger negotiations with Monckton Chambers had broken down.
Discipline is obviously another major issue. The Bar Council does issue guidelines covering sex and race discrimination and harassment issues. While some argue that self-regulation works, others argue that stricter penalties should be imposed for misconduct. For example, Christopher Sutton-Mattocks, formerly of Desmond de Silva QC's 2 Paper Buildings, was fined £500 by the Bar Council after being found guilty of sexually harassing two female colleagues.
While many sets do pay their pupils handsomely, are well structured and will not suffer improper behaviour, others still have no procedures or sanctions in place to deal with complaints, misconduct or termination. BarMark once again falls short of rectifying these deficiencies. It is hoped that when its rules are revised they are considerably strengthened.