There is no shortage of talented female barristers, so the fact that only 15.8% of QCs are female is a cause for concern, particularly if this low representation could be due to female barristers not being instructed on the types of cases required to further their careers and to seek promotion to silk.

Inequitable briefing is seen as one of the most pressing practice issues for the Bar. Recently, the national Employment Lawyers Association (ELA) launched a membership-wide equitable briefing project, as it looks to play its part in raising awareness of the need for equitable briefing of barristers – that is, affording equal opportunities for male and female employment barristers to be put forward for, and instructed in employment litigation cases. Through its Counsel Instructions Monitoring Scheme, ELA hopes to raise awareness of the barriers to career progression which female employment barristers face, in order to help both sides of the profession to work towards a solution.

Those obstacles arise for a multiplicity of reasons, as is the case with all 'glass ceilings' in the workplace. ELA's scheme is concerned with the point at which solicitors select barristers for a case, and to try to understand whether there may be unconscious bias in the way briefs are allocated. It is human nature to go back to the familiar, tried and tested counsel who won the last case for a client and it can be difficult to recommend barristers to clients when solicitors have not worked with them previously. But this can mean that the same pool of barristers will always receive the briefs, resulting in serious inequality of opportunity.

If female barristers are not given the cases that will help them further their careers – they will never get the right kind of experience to enable them to apply for silk. A lack of diversity at the senior end of the Bar in turn leads to a lack of diversity in our country's judiciary, which recruits mainly from the Bar.

The issue of equitable briefing has been gaining traction over the last 18 months. In 2018, two judges in the Employment Appeal Tribunal (EAT), Mrs Justice Jennifer Eady and Lady Justice Simler (then President of the EAT), first raised serious concerns at the relatively small number of female barristers applying for silk. This was despite the employment Bar being full of immensely talented, ambitious and assertive women. The press gave wide coverage to the issue.

ELA took up the baton by running a pilot of its current scheme in 2019. Whilst the data set of that pilot was too small to draw conclusions from, it seemed that the gender of the instructing solicitor may have a bearing on the gender of counsel chosen. This prompted ELA to roll the scheme out at the beginning of 2020 to all firms and organisations who instruct employment counsel and who are represented amongst its 6,000 members.

It is often the case that the simple act of recording decisions can make people more aware of equality issues and question the basis for those decisions. ELA believes that this project could, in itself, lead to change within the profession.

ELA's scheme has been welcomed by the Employment Law Bar Association (ELBA), and the Institute of Barristers' Clerks (IBC) who are helping to support it.

ELA reports real enthusiasm and a very good take-up for the scheme amongst its members. As a membership organisation ELA believes it is uniquely placed to collect a much wider data set than individual firms would be able to do.

There is still time for more employment firms and teams to join the ELA scheme. The more data the scheme is able to collect, the better informed ELA and the legal community will be and the better placed to make recommendations to challenge the systemic and structural reasons for inequitable briefing. Without robust data there is no evidential basis on which to challenge practices which may be limiting the progression of talented members of the legal profession.

ELA aims to report on its findings in May 2020. To find out how to join the ELA Counsel Instructions Monitoring Scheme please contact [email protected]

Marian Bloodworth is deputy chair of the Employment Lawyers Association and an employment partner at Kemp Little. Claire McCann is an employment, equality and human rights barrister at Cloisters Chambers and a member of ELA's management committee.