KMQC's 2010 article to AWB, resulting in 4 New Square threatening legal action on AWB

The Association of Women Barristers

President: Cox J

Spring 2010

Where are we now?

An examination of the state of equality in 2010

Karon Monaghan QC

The past month has been a busy one for those of us concerned about equality in the legal professions. Dr Bijlani, an Asian woman barrister of 4 New Square Chambers, lost her case of race and disability discrimination against those Chambers in the employment tribunal. Our twelfth Supreme Court justice was appointed – another man, as it happens. Those who ‘expressed an interest’ in becoming Deputy High Court judges have learnt whether they are to be so appointed. And the Advisory Panel on Judicial Diversity 2010 published their first report. 1 What does all of this tell us, if anything?

The widely reported case of Dr Bijlani against successive heads of her Chambers, 4 New Square Chambers, promulgated an image of the Bar which was decidedly grim. Dr Bijlani was not successful, in the event, in any of her claims of race and disability discrimination but in dismissing those claims, the tribunal made a number of findings of fact which do not serve to promote an image of the Bar with which equality practitioners could be proud. 

Dr Bijlani had alleged that her career had been impeded by a clerks’ room that had been, in the first place,engaged in racially discriminatory clerking practices. Onexperiencing a reactive depression in consequence of those discriminatory practices said to be grounded in race, she alleged that her Chambers engaged in disability discrimination, by a failure to make reasonable adjustments amongst other things. As I have said, all of these claims were dismissed and 4 New Square Chambers (and their clerks) were found not to have discriminated against Dr Bijlani at all. However, in the very lengthy decision,2 the tribunal found, amongst other things, that an incident had occurred in May 2000 where a clerk [Dennis Peck] in Dr Bijlani’s Chambers had, inadvertently, left a message on the answerphone of the Chambers’ receptionist (a Black woman), having assumed that the call had been terminated, mimicking the receptionist’s Caribbean accent and including the remark directed to his colleagues that he “hate[d] educated wogs”.3 That led to a complaint to the police by the receptionist who retrieved the message and, in due course, in Chambers entering a compromise agreement in the sum of £45,000 “drawing a line under all her potential claims against Chambers and the employees concerned” and “that on that basis [the receptionist] did not intend to pursue the matter of criminal charges any further”.4 

Following an investigation by one senior member of Chambers [Christopher Gibson QC] it was recommended that the clerk [Dennis Peck] who made the remark, and the senior clerk [Dominic Sabini] who overheard the remark [with Steve Purse], should be dismissed. That was not accepted by the members of the Chambers’ executive committee [Lizzy Wiseman, Justin Fenwick QC, Simon Monty QC, Graeme McPherson QC, Ben Elkington QC, Paul Parker, HHJ Iain Hughes] and instead the clerks involved were given written warnings and appropriate racial awareness training.

It is difficult to think of a modern work environment, outside of the Bar, where such conduct – plainly unlawful and grossly racist – would have resulted in anything other than summary termination. 

Thereafter, according to the tribunal’s findings of fact, another member of Chambers [Jalil Asif] in 2004 referred to a Black Minority Ethnic (BME) member of Chambers as a “greedy cunt” which led the barrister concerned, unsurprisingly, to question whether the “underlying culture in the clerks’ room”, following the comment made on the receptionists’ answerphone in 2004, had changed as the remark was overheard by the BME barrister concerned. That resulted in an oral warning with a letter recording the same placed on the member of staff ’s file [Dominic Sabini] for six months. The same clerk that had been abusive about the BME barrister then, following the break-up of a relationship between him and another employee of Iranian/Persian nationality, verbally abused her so aggressively that she picked up the phone to call for help.

The abuse included describing her as a “slut”, a “whore”, a “slag”, and a “fucking cunt”. He also said at one point that she had “sucked Iranian cock” and ended his abuse by stating “don’t worry we’ll get rid of your lot, do it myself, get rid of your lot”. The clerk was, at least, suspended but thereafter permitted to resign with the assurance that “any reference would refer to the fact that there had been an incident following which he had chosen to resign”.5 

The head of Chambers [Roger Stewart QC] afterwards circulated an e-mail to members of Chambers that he had accepted “with considerable regret” the resignation of the clerk concerned who had “given very valuable and loyal service and that he knew that very many members of Chambers and staff would be very sad that he was going”.6 Whilst there would not be any “send off ” in the usual way, according to the head of Chambers, there was nothing to stop anyone expressing their gratitude to him for his time as a clerk. He also precluded any discussion with staff about the matter and directed that if any outside query were to be raised, it was to be said that he left on mutually agreed terms. 

To an outsider, this might smack of a cover up and again it is difficult to see why such unlawful and explicitly sexist and racist conduct did not result in summary termination of his employment.

Other incidents occurred, including in 2006 when comments were made by an employee about a black junior member of staff. These remarks were recorded by the then senior clerk [Lizzy Wiseman who had extramarital affairs with consecutive Heads of Chambers, Justin Fenwick QC and Roger Stewart QC], to whom the member of staff concerned complained that the black junior member of staff came to work late “because he is black” and that “this country shouldn’t allow people of different races to come here and behave like this”. That resulted again, in a verbal warning.7 The warning recorded that the senior clerk [Lizzy Wiseman] was “satisfied that [his] behaviour towards [the black junior member of staff] was not because of any racist attitudes and I do not believe that you are prejudiced against him”.8

How such explicit racism could be so condoned is bemusing to me and may be bemusing to others with an interest in equality at the Bar.

Other concerning matters emerged from the decision which merits reading in full. The Tribunal in terms found that in relation to certain of these episodes, and the broader picture, there were certain clerks who, to a greater or lesser degree, and at different times, displayed racist attitudes; and that was enough, according to the tribunal, “against the further background of the disparity between the claimant’s fees and those of her comparators” to cause the statutory burden of proof to shift (that is, that there was evidence from which a tribunal could conclude in the absence of an adequate explanation that the Claimants’ Chambers 9 had racially discriminated against her).10 

As I have mentioned, in the event they dismissed those claims, finding other, nondiscriminatory,explanations for the experiences of the Claimant. 

Nevertheless, the findings make fairly shocking reading for one used to addressing the now fairly high standards set by equality law for the promotion of equality and diversity in the workplace.

Challenging discrimination at the Bar is, of course, very important indeed. This is not just because women enjoy the right to join the professions on equal terms and to engage in professional life on a substantively equal basis, having regard to all human rights and equality instruments, domestically, regionally and internationally, but also because the presence of women in broadly equal numbers ensures that the delivery of justice is not improperly gendered. Women make an important contribution to this through their presence at the Bar. However, importantly, too, the Bar remains the main pool from which the judiciary is selected. If women are not present at the senior levels of the Bar because they are discouraged by discriminatory practices or disadvantaged directly by them, they will be lost to the judiciary too. Nor is it just white women that the Bar needs to retain and the judiciary needs to have join their ranks, but all women so that the diversity of women’s experiences are properly reflected in the professions.