For most of us, flexible working means improved work-life balance and the ability to combine caring responsibilities with work; responsibilities which, as much as we may wish otherwise, fall disproportionately on the female sex. For HMCTS, flexible working appears to mean something rather different.
Days ago HMCTS Chief Executive Susan Acland-Hood suggested that the Crown Courts’ backlog should be dealt with by extending court-operating hours. She dismissed solutions such as the reinstatement of previously cut sitting days to address a backlog which now sits at 41,599 outstanding cases. That backlog had already reached some 38,000 by the end of 2019. At that point HMCTS made no indication of an intention to pause the plan to further reduce sitting days and the size of the courts’ estate. It is fair to infer that HMCTS regard the pandemic as another opportunity to seek to introduce a scheme which has previously been met with overwhelming resistance from the legal profession.
Acland-Hood’s only allusion to impact was barely detectable, and rather coyly expressed: “it takes people out of their accustomed ways of working, around which patterns and plans including things like childcare are built.” (our italics) In reality, it takes women, who bear primary caring responsibilities, out of their already overstretched “ways of working”. It makes no allowance for the fact that many female lawyers have to make plans of almost military efficiency to manage both professional and personal responsibilites. It is noteworthy that Acland-Hood did not acknowledge that the impact will be most acutely felt by the female side of the profession, and exponentially by those who bear sole caring responsibilities.
Judicially-led working groups have, we are told, been set up to carefully consider what will work best in individual jurisdictions to ensure that changes implemented in a collaborative way. We are told that all key bodies representing legal professionals and others are involved in these groups and that detailed modelling has been shared.
The concept of extended or “flexible” operating hours is not a new one. HMCTS has been toying with the idea for at least 4 years, and the issue of the impact on female lawyers was raised at the earliest meetings with professional representatives. In April 2017, it published its Flexible Operating Hours Equality Statement; this was intended to be a live document and expressly stated that it would consider the sex-based equality impact of extended hours. It noted the concerns about the impact on work-life balance and diversity
Perhaps surprisingly then, no account was taken of the impact flexible hours would have on maternity and pregnancy or on breastfeeding, an oversight which the HMCTS Judicial working groups could now reasonably be expected to correct. At the time of its writing the authors of the equality statement appeared to envisage monthly reviews and updates throughout the life of the flexible operating hours project. Possibly less surprisingly, neither reviews nor updates have materialised.
On 28 June 2019 the Evaluation Plan for Flexible Operating Hours’ Pilots was published; here sex-based “disbenefits” were identified and the potential for long term negative impact was recognised. It was also considered possible that flexible operating hours might lead to an unfair distribution of work such as Chambers allocating work to non-primary carers. In other words, working mothers may miss out on work; the female side of the profession would be disadvantaged.
It was also recognised that there could be a negative impact on professionals’ working lives which may have a longer term impact on recruitment and retention, as well as irreducible working practices such as managing preparation time and conferences out of court. Nonetheless, it was suggested that flexible hours might support a better work-life balance for those with caring responsibilities, particularly if combined with better listing practices.
Discrimination practitioners will be alert to the obvious limitations of a hypothesis such as this, based upon an assumption that legal professionals with primary care responsibilities (statistically, predominantly female) have a partner with whom to share the load of childcare responsibilities. This assumption is one which puts single mothers in the profession at an acute disadvantage..
We pause at this point to note that listing practices have long been a source of disruption (professional and personal) and financial difficulty to practitioner. Legal professionals would be forgiven, we suggest, for viewing the promise that listing might take proper account of lawyers’ availability and commitments, particularly when those commitments are personal with some scepticism.
The evaluation planned to interrogate how flexible hours would impact on caring arrangements and adjustments to workloads and responsibilities whilst also taking into account the cost of childcare to legal professionals. It was recognised that, in some instances, the types of impacts which flexible operating hours could have on the profession may take years to show up and that the pilots which were only to run for six months may not uncover.
It is interesting to note that, despite the equality statement’s earlier clarity that those legal professionals most likely to be disadvantaged would be women, there is a marked disinclination throughout the evaluation to refer to this fact in unambiguous terms. Its language is oddly sexless; given the prominence of sex discrimination as a potential obstacle to the lawfulness of the scheme, the refusal to name it might be seen as a form of neuro-linguistic programming, one which is assiduously adopted by Acland-Hood in her blogpost.
The flexible hearing pilots were concluded in May this year and we find it, yet again, surprising that no mention has been made of their evaluation. The Flexible Operating Hours report must be in train; the raw data having already been collected. In light of the justification now advanced for pursuing Flexible Operating Hours, it would be a startling oversight on the part of HMCTS to fail to update the Equality Statement to take account of the sexed impact of Covid 19. Research from the Fawcett Society and Maternity Action would be an excellent place to start.
Flexible Operating Hours could be workable, and even welcome, for those who are realistically able to reconfigure their childcare responsibilities and share the load with partners or family. But it must not work to disadvantage women who do not have such flexible personal circumstances. The retention of women in the legal profession is a matter of abiding concern.
In terms of the rate at which the backlog of cases has grown, the public health crisis has made little significant difference. Covid-19 has not created a crisis in the justice system, although it has exposed the pre-existing crisis in those jurisdictions most heavily reliant on publicly-funded work. A ‘solution’ which was devised before the existence of the pandemic, and was designed primarily to cut costs, will do little or nothing to address the consequences of Covid-19 for the justice system, but will almost certainly exacerbate the consequences for the women upon whom it depends.