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Josephine Davies on Working hours at the Bar

Recently, I caught up with a friend from university. In the 20 years since we met, he’s pursued a career as an academic scientist. I have become a commercial barrister. Over coffee, my friend was surprised that I was planning on doing a few hours work later that day (a Sunday). He asked when things would change so that I could write a history book (his understanding being that this was part of the natural career progression at the bar).

Once I’d finished making flippant comments about his charming but possibly old-fashioned perception of the bar, I paused to think. Could or should I want to work fewer days in the week? Did I have to work at a weekend?

Working hours are a hot topic generally. Articles about the four-day week and the benefits of a taking breaks from work have been popping up in the press. There have been two recent reports on the topic; one from the think-tank Autonomy “The Shorter Working Week” and one analysing a four-day week pilot conducted by Perpetual Guardian, a New Zealand financial services company.

Moreover, in January 2019 Richard Atkins QC, chair of the Bar gave an interview to The Times in which, as the headline put it, he “…calls for end of email tyranny”. While he mostly had the criminal bar in mind, his remarks were not limited to those practitioners. Few could disagree with his observations that “technology is very good but it does suck us into a 24/7 365 days a year culture,” and that “there is a danger that we are expected to be on parade 24 hours a day, seven days a week and that isn’t good for anybody.

Finally, I looked at the Bar Council’s 2017 Working Lives survey. Even[1] in purely chancery or commercial areas some 40% of respondents were unable to agree with the statement “I am happy with my working hours”. The survey and anecdotal evidence suggests that the problem is long or unpredictable hours. I therefore asked myself, could the four-day week bring benefits for the self-employed bar? What other solutions might there be?

Is the four-day week a solution?

The recent Perpetual Guardian trial showed that there had been no reduction in output and that employees were happier with improved work-life balance. The employees worked fewer days but the reward for the employer remained the same. The full benefits of the four-day week do not, however, translate perfectly to the self-employed sphere (indeed, the Autonomy report which advocates a four-day week refers to the self-employed only once). There are financial and logistical issues.

Other than for trial work, much work at the self-employed commercial bar is remunerated with an hourly rate. It is not possible simply to work less but maintain the same fee income. The advantage of improved productivity cannot exist.

Even if a barrister were to choose to exchange time for money, there are also significant logistical challenges to a four-day week. Notably, hearings are fixed for every day of the week. That’s not to say it’s impossible to work a four-day week and I know one or two barristers who do so successfully. However, some flexibility is required if full week hearings are to be accommodated. For most people the four-day week is not likely to be the answer to their unhappiness with working hours.

How else can working hours be controlled?                                                                

The simple way to avoid too much work is just to say no. That may not be realistic. As Riaz Hussain QC observed in his blog, there is always the fear of work famine and, sometimes, it’s just not easy to predict how long a task will take.

Controlling working hours is desirable though. A range of studies show that taking breaks from work improves wellbeing and effectiveness. That would benefit all involved in a case and, ultimately, the client. Taking breaks (even lunchbreaks) only works if they are used for activities unrelated to work. That requires switching off from your email.

The problem is that, as Richard Atkins QC recognised in his Times interview, sometimes in commercial work it is necessary to deal with emails and telephone conferences at non-standard hours. For example, in international litigation, a strategy call may be required between a client in the Far East and their lawyers in London and on the West Coast of the USA.

However, these genuine emergencies and unavoidable situations are not the basis for many evening and weekend email exchanges. The question is how can these be avoided, or the stress generated reduced? Better planning is one answer. Another approach is a ‘protocol’ for emails. While a formal protocol might be developed, there is room now for everyone to adopt a sensible approach to sending emails outside traditional working hours.

One of the great advantages of the self-employed bar is freedom of choice about when to work – deadlines permitting I can choose to leave early one day and catch-up on a Sunday. However, there is a danger that by doing what is convenient for me, I inadvertently impose stress on others. For example, where my choice to work on a Sunday generates emails to others, it may place them under (real or imagined) pressure to respond. This could be avoided by making clear that no response is wanted or expected until normal working hours. Another answer is to write the emails as drafts and send them only once the working day has begun.

There is unlikely to be one solution that fits all people or all cases. Finding the right answer may take time and is worth discussing in any new working relationship. If those discussions become normal, I believe it can only serve to improve the efficiency with which cases are conducted and, most importantly for this blog, the wellbeing of all involved.

[1] The situation was much worse for, particularly, family and criminal practitioners.

Josephine Davies (2006 call) is a barrister at 20 Essex Street. She is the LCLCBA representative on the Wellbeing at the Bar Working Group. The views expressed are her own.