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Employment lawyers lead the way on “equitable briefing”

Bloodworth: Giving people pause for thought

A total of 33 law firms, from large global practices to sole practitioners, have signed up to a monitoring scheme designed to ensure “equitable briefing” of male and female barristers.

Marian Bloodworth, deputy chair of the Employment Lawyers Association (ELA), said that although a few City firms were already monitoring the diversity of their instructions to counsel, this was, as far as she knew, the first time a membership association had launched a scheme.

Ms Bloodworth, a partner at Kemp Little, said the idea of voluntary monitoring of instructions originated in concerns from senior employment judges that not enough women were putting themselves forward for silk.

“We wanted to understand the reasons why women barristers were not putting themselves forward.

“One of the things they need is a good portfolio of cases. If you haven’t got a portfolio, you won’t put yourself forward. You need to be instructed on complex, high-value cases.

“Some barristers are direct access, but typically these cases are from solicitors. How do we make sure that really good cases go to female barristers as well as male barristers?”

Ms Bloodworth said the “beauty of it” was that the ELA’s membership included a “cross-section of all different kinds of firm” and in-house lawyers across England, Wales and Scotland.

The ELA has over 6,000 members, 80% individual members and the rest law firms, sets of chambers, companies and other organisations. Around 10% of members are in-house lawyers and 10% barristers.

The ELA carried out a pilot monitoring scheme last year with the 17 firms and companies represented on its management committee, which monitored their employment teams’ instructions of counsel by reference to gender. Data was received from 11 of them and analysed on an anonymous basis.

The association said that, although the sample was very small, the results did suggest that the gender of the solicitor played a part when instructing counsel, and female barristers were more likely to be instructed by female solicitors.

Ms Bloodworth said she had already received messages from barristers welcoming the launch of the wider monitoring scheme, which will run for three months. A report will be produced for the ELA’s AGM in May.

“This will give us information from a far wider range of firms,” Ms Bloodworth said. “There were not enough involved in the pilot to produce a really meaningful set of data.

“One of the things we’re hoping is that this gives people pause for thought. There is no direction for them to behave in a certain way. There may not be a range of options on who to instruct.

“Recommending a barrister is a really big thing. You feel more confident recommending someone to a client if you have worked with them before.

“Since there have always been more male QCs than female, it’s been easier to say you’ve worked with a male barrister before.”

Ms Bloodworth said the ELA now made a point of “calling out” the success of its members barristers in being promoting to employment judges and more senior judicial roles, and in becoming QCs.

“I have a feeling that people’s awareness will already have been raised,” she added. “Behaviour may already have changed.”