Bar Standards Board clarifies the responsibility of barristers to report harassment

Jennifer Danvers

Jen Danvers considers the Bar Standard Board’s recent regulatory update to barristers concerning the reporting of harassment and the pilot harassment support scheme.

In 2016 1,333 female barristers were surveyed, 40% of whom said that they had experienced harassment at the Bar. [1]

The difficulties in tackling this issue, particularly in self-employed practice are obvious – junior barristers are often reliant on more senior members of chambers for led work or for recommendations, out-dated attitudes towards acceptable standards of behaviour are prevalent, chambers do not tend to have HR functions or individuals trained to investigate and consider complaints of harassment, the community of barristers is small and fear of getting a reputation as a ‘trouble-maker’ can make those who have been affected by harassment fearful about coming forward.  These issues are exacerbated because movement between different sets is relatively rare and (if not desired) potentially detrimental to developing a chosen area of practice; this makes the prospect of a complaint ‘going wrong’ incredibly daunting.

The Bar Standards Board has a significant task in ensuring that, independent of the attitudes of individuals or of different chambers, the Bar as a whole recognises that harassment is completely unacceptable and something which has no place in our profession.

The BSB Handbook makes it clear that unlawful harassment is likely to be considered to be a breach of a barrister’s core duties to act with honesty and integrity and not behave in a way which is likely to diminish the trust and confidence which the public places in him or her in the profession.  However, a search of the online database of past disciplinary findings on the BSB website indicates that vanishingly few barristers have been disciplined for harassment.  The mismatch between reported experiences of harassment and instances of disciplinary action for the same indicates that there is a significant lack of reporting.

Reporting Serious Misconduct of Others

The way, in part, that the BSB has sought to address this is to make it clear that harassment falls within the definition of ‘serious misconduct’, which all barristers have a duty to report (or run the risk of facing disciplinary charges themselves).

When these provisions came into force there was unease that someone could potentially be in breach of the Code of Conduct by failing to report their own experience of harassment.  In Guidelines published by the BSB in 2015, it stated, somewhat equivocally, that ‘the BSB would not ordinarily expect to take disciplinary action for failing to comply with the duty to report if you believe you are a victim of the misconduct in question’.  This has helpfully been strengthened by a very recent update to the Guidelines, which states that ‘the BSB has a policy of not taking enforcement action for failing to comply with the duty to report if you may have been the subject of these types of misconduct.’ [2]

For anyone who does not consider themselves a victim, but who has witnessed harassment the guidelines are clear – there is a duty to report that conduct to the BSB. That obligation applies regardless of whether the victim of that misconduct consents to such reporting or not (subject to some limited exceptions including where client confidentiality is engaged).

Placing an obligation on barristers who witness harassment to report it is presumably hoped to: a) ensure that any belief that such behaviour will go unchallenged will be significantly shaken, b) increase the rate of reporting and c) ensure steps are taken in cases where those affected would like action but feel concerned about instigating a complaint themselves.

However, this approach also has its downsides.  First, taking the decision of whether or not to make a complaint away from the person who has been harassed may feel like a further act of disempowerment or serve to re-traumatise someone who has been the recipient of highly distressing behaviour.  Second, if the power imbalance is significant enough between perpetrator and victim, it may lead to someone who has been harassed feeling he or she not only has to ignore the treatment they have received, but go further and positively deny what has happened in order that a complaint which they wish to have no part in does not progress.  Third, it may lead to isolation if an individual feels unable to confide in close colleagues in light of the risk those colleagues will then report what they have heard.

The BSB has made it clear that it will not take action without first consulting the person who has been affected.  Some clarity on what this means in practice would be helpful and may reassure practitioners who would have significant concerns about forcing colleagues who have been affected by harassment to be part of a process they have not chosen to instigate.

Pilot Harassment Support Scheme

In relation to addressing the risk of isolation, the BSB has announced in its October 2018 Regulatory Update [3] that it is launching a pilot harassment support scheme whereby groups of barristers who have received training in how to support and guide those who may have experienced harassment will be granted a waiver in certain circumstances from the duty to report serious misconduct.  This is an extremely welcome move.  Initially it appears that the aim is for support schemes to be run by bodies such as circuits and Inns with individual barristers being granted a waiver through those bodies.

If the pilot is successful presumably the aim is that the scheme will be rolled out so as to enable chambers to all have dedicated individuals to support those affected by harassment. It is hoped the BSB will have an eye to ensuring that there is a diverse group of people trained in this role to ensure that anyone who has experienced harassment has someone that they feel comfortable approaching. Equality and Diversity Officers would arguably be well placed to fulfil this function, but may also be expected to provide advice to any internal Chambers’ investigations.  Accordingly, it may be more appropriate to have a separate ‘Harassment Officer’ or perhaps potential for chambers to pool resources and share the expertise of Equality and Diversity Officers or those participating in the harassment support scheme.

As a profession, actively engaging in these attempts by the BSB to reduce the figure from 40% is surely a duty that falls on all of us.  In this regard it may also be helpful for chambers to consider providing training to tenants on how to effectively and supportively be ‘active bystanders’ when we observe behaviour that may not cross the threshold of amounting to harassment, but nevertheless serve to make individuals uncomfortable or unchallenged perpetrators feel emboldened to harass.  At the very least chambers should ensure that their own policies are up to date, that tenants are aware of their obligations in relation to reporting and that they actively engage with schemes such as this pilot.

It is also worth remembering that as a last resort, individual barristers and pupils can bring discrimination claims against members of their chambers if they are subject to sex discrimination and harassment under the Equality Act 2010.  The costs and reputational risk associated with a successful claim are significant.

Jen Danvers specialises in discrimination law and in representing professionals in regulatory proceedings.

1. (Women at the Bar Report (https://www.barstandardsboard.org.uk/media/1773934/women_at_the_bar_-_full_report_-_final_12_07_16.pdf  July 2016)

2. https://www.barstandardsboard.org.uk/media/1666565/reporting_serious_misconduct_of_others__september_2018_.pdf

3. https://www.barstandardsboard.org.uk/media/1957296/pilot_harassment_support_schemes_waiver_guidance.pdf