A guest post by Marian Bloodworth, deputy chair of Employment Lawyers Association and a partner at Kemp Little, and Claire McCann, barrister at Cloisters Chambers and a member of ELA’s management committee
The national Employment Lawyers Association (ELA) has around 6,000 members, both solicitors and barristers, and recognises the importance of equality, diversity and inclusion within, as well as beyond, the profession.
Therefore, when in September 2018, two judges in the Employment Appeal Tribunal (EAT), Mrs Justice Jennifer Eady and Lady Justice Simler (then president of the EAT) called a meeting to discuss the number of women employment barristers applying for silk, ELA took a keen interest.
Despite the high number of very skilled women in the profession, only about 15.8% of QCs are female. In addition, only 7.8% of QCs come from BAME backgrounds and only 1% are known to have any disability.
A number of recent articles in the legal press have drawn attention to potential inequalities of outcome in the way cases are given to employment barristers and in the opportunities that women barristers therefore have in developing their portfolio of experience in preparation for applying for silk.
There is a clear line of sight from the process of a law firm selecting a barrister, to the experience built up by those barristers, to them reaching the position of being able to apply for silk. In order to address the inequality of outcome, it is necessary to examine the causes of inequality of opportunity.
In 2019, the ELA decided to start with a pilot monitoring scheme, aimed at finding out whether gender might be influencing the decisions made by law firms about which employment barristers to instruct.
Data from this pilot suggested that the gender of the instructing solicitor may have a bearing on whether a male or female barrister was instructed, but the sample size was small. In January 2020 ELA therefore launched a broader monitoring scheme  amongst its wider membership, which will come to fruition in May 2020.
Participation will itself raise awareness among the firms signing up for the scheme, but it is hoped that more will be revealed about underlying factors with the result that more concrete recommendations for addressing the issue can therefore be proposed.
Our monitoring scheme is aimed at understanding the practices that influence how and which barristers are instructed and how gender might play a part in that, most likely unconsciously.
If there are systematic factors in play, we want to know about them so we can address them.
Of course, it’s not just about the number of cases in which a woman barrister is instructed but also about opportunities to represent clients in leading cases as these form such a significant part of any application for silk.
As many readers will know, any barrister applying for silk must be able to reference at least 12 noteworthy cases in which she has acted and provide as many as 24 referees, including at least eight judges, so it is critical for any barrister to be instructed in enough cases of sufficient weight in appropriate courts to be able to meet these requirements.
A better gender balance among QCs and the judiciary is clearly to be welcomed by those on both sides of the profession and also the users of courts and tribunals. We hope that our project will highlight awareness of the importance of equitable briefing and help to identify ways in which the profession can move towards more equitable briefing.
Having identified this issue, our next step has to be to obtain good evidence of the mechanisms in play, the causes, and the potential practical steps that can be taken to improve the situation.
It is for this reason that we welcome the great level of engagement we are seeing from ELA members and their firms with this monitoring scheme and would encourage any firms who have not already signed up, to do so.”
ELA members can sign up by emailing email@example.com .uk. The Association plans to publish its initial findings in May 2020.