Thread by @tribunaltweets

Good morning; welcome to the morning hearing on Tuesday 17th May 2022 in the case of Allison Bailey vs Stonewall & Garden Court Chambers at the Employment Tribunal. The case resumes at 10am

There is a list of the abbreviations we use (and the tweet threads from last week's hearings) at tribunaltweets.substack.com/p/allison-bail…

We expect proceedings to begin at 10.00 am, and for Rajiv Menon (RM) to stake the stand. RM is a QC and at the time was one of the Heads of Chambers at Garden Court (GC)

[Court is now in session]

EJ: Good morning. Rajiv Menon will continue his evidence.
BC: re the claimants billing figures, it's fair to say you weren't involved in this
RM: correct. I've analysed the data
BC: go to GC wit state. You say there are explanations to the drop-off in income
RM: That's right

Huge discrepancies aren't unusual
BC: income and billing aren't indicative of a person's work bc billing can take time to bill
RM: depends how quick you are to bill. AB is an efficient biller and I think the relevant period of time is approximately from 1 Nov 2018 - 1 Nov 2019

BC: we can explore that. There isn't a way of seeing when the work is done
RM: you can work out from payments and when case ends.
BC: go to p558 of bundle please. there's an analysis from 2015-2019. Go to 2018-19
RM: I'm not au fait with the system but you can specify what

want to look at. AB's is printed in a different way to mine
BC: you don't record info in the same way that I do
RM: these are parameters set. There is a slight diff between the two figures but I don't know why. It's safer to look at income rather than billing.

BC: please focus on my questions. Do you know the parameters set for the work done on this doc.
RM: no.
BC: within figures we have available, the billing figure is more likely to be a measure of quality of work done than payment figure
RM: I don't agree - shouldn't base it on

billing
BC: billing may be subject to adjustment
RM: of AB's billing she didn't make the same amount - it differs by 31%
BC: in your wit state. You cross ref to a work done report for 2018
RM: correct
BC: you've got this wrong. The right figures are total fees billed in 2018

second column is all right-offs. That may be fees written off and might be from work done in previous years.
RM: i don't think so
BC: the totals at bottom show right-offs in 2018 from billing in 2018 - that's very different from right-offs including from earlier years

RM: I see that
BC: It comes to £43k. In your state you haven't used the two figures, you've used the larger figure and added it to give you a bigger reduction in billing
RM: I see what you mean. You are dealing with substantial reduction - safer to look at income
BC: now we've

corrected figures. did the claimant suffer a reduction in clerking and income and if she did what is the value to be made on that?
RM: ok
BC: as a measure of the quality of instructions you should take work billed fig bc that shows the vagaries of the work she's doing rather than

work on figures after taxing.
RM: she had been lucky in 2018. In 2019 she had bad luck - 4 cases that went short
BC: you say adjustments to fee. Adjustments to fees don't show the quality of the work done.
RM: no this gives you a distorted picture
BC: there are other things to

look at but if you are comparing like with like - if you look at figures without adjustments you get a quality assessment of the quality of the work done
RM: I don't agree
BC: there are inherent variations in work
RM: that's right

BC: you compare financial years with calendar years. AB had an illness but you would have taken that into account
RM: that's why you need to look at parameters you use.
BC: look at calendar figures - billing is better figure to use so look at that, we see a pattern

of increasing income and smaller cases. That is as it should be - more money and few but better cases. Then in billing and income it goes off a cliff
RM: one way of putting it
BC: income shows 50% decrease
RM: yes

BC: Looking at financial years we see increase from 2017-18 and then see huge drop-off in 2018-19
RM: the murder case she did, she got income in 2020.
BC: if you look at 2015 forwards you can't see the quality of work this way
RM: all of her cases had been adversely affected

in one way or another
BC: there was definitely a drop-off
RM: question is why
BC: you give 4 reasons
RM: I tried to give most salient points
BC: if the tribunal found that the quality reduced it would be an obvious cause in drop in income

RM: question is why did it diminish? I don't think it was a conspiracy.
BC: first point - change in payment regime. you set out a table showing AB and other comparable people
RM: this is my table which I have extrapolated from a bigger table.
BC: these eight people were selected

RM: the bigger figure shows retirees and people who took the silk
BC: using income figs the drop-off for AB was joint-highest
RM: yes
BC: we can't tell if that person was affected by any reasons
RM: but that person wasn't suing us so we didn't investigate

The bulk of ABs work were high page-count pages. Once that's abolished the income reduces
BC: re billing figures
RM: billing distorts the picture
BC: the % figs don't appear here but if you look at AB the reduction is 76% and next highest which was 38%
RM: that looks right

BC: using billing figs AB's was more that double the next highest reduction
RM: I agree that's why I ask the question why
BC: this suggests that the change in regime can't explain the whole reduction
RM: I didn't say that. It's not the whole reason. The reason was she took 5

months off. That's the main reason
BC: 2nd reason you give - it's understood there is a diff between holiday and 'keep-free'
RM: yes
BC: many barristers have 'keep-free' days to do billing but can be called in if necessary
RM: I can tell you what I do
BC: Don't need to know this

BC: 3rd point - you suggest we introduce into analysis, blank days in her diary
RM: not suggesting that diary being blank was bc AB was on hol or had requested days off. Some of those days correspond with when AB turned down
BC: but you don't suggest that she was unavailable for

work
RM: no but she did turn some work down
BC: there a diff between being asked to do a case in July but I turn it down to see if a big case comes up
RM: she can manage practice in way she wants to. There are financial consequences if she turns down work
BC: turning down work

hoping for better cases is an accepted way to manage your diary
RM: she can do what she wants
BC: if I turn down a case in 2 months time for 1/2 a day work hoping for better work shouldn't impact financially if clerked properly
RM: I'm not arguing with you - multiple variables

BC: turning down work tells us nothing about the quality of her clerking unless it's high quality work - like she was getting in 2018
RM: we've all done inferior cases bc we looked at bigger picture. If she routinely turns down work - not bad clerking

BC: going back to various days off, can we agree blank days don't show quality of work and show bad clerking
RM: agree with first point not second
BC: she had a greater no of days in 2019 when she wasn't found quality work
RM: can't attack on the clerks for that

Have to look at restrictions that AB put in place herself
BC: re other categories you have - if the practice was AB was available should good work present itself on 'keep-free' days the clerks would know this
AB: never heard of barristers doing this

BC: AB came out of trial at beginning of year with no cases scheduled for her. This was unusual - not what you would accept
RM: that case went short so AB lost 8 days work. No-one's to blame. She lost £4k in income
BC: this wasn't unusual
RM: this happened 7 times to AB

BC: you would expect from effective clerks when you come out of a case, the clerks would have work ready for her
RM: she booked a month off from middle of Feb. They tried to fill the weeks before that
AH: the email AB sent was she wanted to book a month and she came back early

EJ: these points need to be brought up in re-examination. We will take a break - back in 5 mins

[court resumes]
BC: looking at diary from 2019 - we see from away days that when she came back to a hearing and then another hearing; cut her time-off short to take a case. Shows clerks know she's available to work
RM: you'd have to ask clerks. Add this to other time off - we

have 14 weeks off by 11 March
BC: from previous year
RM: you have to take that into account
BC: that's why you look at financial year so you can count this. You suggest that one reason for little work was bc of her holidays and keep-free days.
RM: you're going to have income

reduction if you take 5 months
BC: you say one reason her diary wasn't filled bc she marked days of for holidays and keep-free
RM: if she's out of court - her income will be impacted
BC: is this inconsistent with her being poorly clerked. The Feb-Mar period doesn't help bc it

shows AB is prepared to come back for good work.
RM: from CT wit state the clerks were trying to find her work. AB suggests that they forgot about her - I don't agree
BC: you commented on holidays and keep-free days - one of those was at end of trial. Do you dispute that AB would

ask for short period off at end of cases?
RM: you'd have to ask clerks
BC: re another period of keep-free days, can you dispute that she would have been available?
RM: if she was free - diary should have been blank
BC: her practice was understood by clerks
RM: can't dispute

that
BC: odd days for appointments plus more keep-free days. One period AB was unwell for 2 weeks in July and recommenced work after that
RM: she had full week diary in August for a case - that was delayed until 2020. She said she wanted time off
AB: she was off for most July

and August. Trial was moved to 2020 - this was bad luck
BC: need to see how did she compare with others. we see that her no of days of keep-free and hols were lower in 2019 than 2018.
RM: she had 44 days off
BC: her figures aren't out of line in comparisons with her peers

RM: I haven't analysed others diarys. She's taking off significant amounts of time
BC: not too different from what she took off before this period or with what her peers were doing
RM: AB practice is particularly impacted by non-attendance in court
BC: did the keep-free days and

holidays pattern differ for her over difference periods of time
RM: she may always take lots of time off. More time off - more financial consequences
BC: why was there a big reduction in her income in 2019
RM: because she took large amount of time off
BC: you didn't do comparison

RM: it has financial impact
BC: does it explain the drop-off? - you haven't done proper comparisons
RM: AB earned 50%+ less in 2019 and this is one reason
BC: you say that there were high paying cases at beginning of 2019. She was paid for that in 2020. Your figures adjust for

that.
RM: yes
BC: when we cross-check re financial year - you adjusted for absence at end of 2018 and impact of that case being paid for in 2020. you agree
RM: partially explains diff between financial and calendar years

BC: I suggest that a maturing practice from 2018 with a drop-off in 2019. Going to some cases - we can see most lucrative cases only one started in 2019 and that was a return
RM: I don't understand significance of that
BC: diff between being put forward by clerks and having empty

diary and having to fill in at last minute. When there is a return chambers needs to cover it
RM: yes - if I wasn't original barrister and I get a case started by other barrister I don't blame bad clerking
BC: diff between having empty diary and being able to pick up a return &

and having a full dairy
RM: I don't agree it's poor clerking
BC: there was a healthy and developing practice 2018 and then drop-off in 2019
RM: I disagree - 2018 stood out. Three cases earned her £76k that doesn't happen very often. 2019 was bad luck for AB

BC: you say she had opportunities in 2019
RM: yes, GC started to document opps for individual barristers re clerking because of Women's task force report
BC: Women's task force report says solicitors are given barristers in a list - no real clerking involved - not good system.

Being on a list doesn't really indicate good opportunities
RM: one way opps are given to barristers is by people being offered by clerks on lists
BC: it says simply providing list of available people is not example of good clerking
RM: if that's all they did,I agree
BC: clerks

build relationship with solicitors to build trust so can offer barristers
RM: I don't agree that providing names isn't part of the opportunities strategy. It can't only be that though
BC: we can't tell from data about quality of opps or clerking
RM: not true. if you suggest

we don't know relationship between clerk and solicitor
BC: the people on list don't even know that they are on it
RM: no
BC: looking at entry for 30 Jan 2019 and then looking at bundle, we see the opportunity was good example of what WTF report calls bad clerking
RM: how does

this proves that she was disciminated against re her believe
BC: we don't know what other convos took place
RM: of course
BC: you say this is evidence of good clerking. This data is evidence of nothing re quality of work
RM: we started recording opps bc of WTF and this shows AB

was given 42 opportunities
BC: we agree its a matter for tribunal but you can't say what quality of opps from clerking in 2019 was compared to 2018. We don't have any records of where these ops came from - telephone etc
RM: correct
BC: where there IS correspondence AB was

placed on list 8 times
RM: can't dispute that
BC: one of these opps was a case in Oxford which was well-below her experience
RM: yes but some barristers would take it
BC: another opp was where she wouldn't be paid cos not trial counsel
RM: she may be right about this

BC: another case below her seniority
RM: you can't turn down opps and not be affected financially
BC: Mark Ashford case - AB notes she hasn't been offered any work for 4 weeks. The quality offered was very poor
RM: complete nonsense
BC: WTF report recommended reasons should

given for why barristers get jobs
RM: I didn't know that at time
BC: those reasons weren't recorded other than saying other barristers were selected. In cases where barristers didn't decline case - no reason given
RM: I see that. Don't know if there is more info on system

I accept this schedule shows what you said
BC: finally, re special fund. Donations made by chambers are different to paying SW for consultancy
RM: ludicrous to suggest that joining SW meant chambers took a position on sex and gender. We didn't
BC: do chambers reg tweet re policy

positions re special fund beneficiaries
RM: have to ask someone else
BC: chambers tweets they were sponsoring trans inclusion event but you don't do that for other events
IO: not SW event
EJ: we recognise this

RM: re tweeting I don't know. Many members of chambers are involved in diff orgs
BC: do the beneficiaries of your fund provide you with policy advice or consultancy?
RM: no they don't but members of chambers are involved with all kinds of beneficiaries and orgs

BC: that is all my questions
EJ: 5 min break

[Court resumes]
IO: I have no questions
AH: re final questions you were asked. email between AM and CT - sentence where AB says not given quality work. We didn't hear the response. CT says year has been quiet but things are picking up. Better stuff will come. Was this just forAB?

RM: no - lots of things affected 2019
AH: CT says year has been slow for everyone in and out of Chambers
RM: accurate
AH: you examined the work given to AB - did she get big work
RM: not right that she didn't have quality work. Cases went short, delayed etc She had bad luck

AH: you said she had bad luck - do you have anything else to add
RM: she had 4 cases in 2019 that went short and she earned much less than she would have otherwise. 2 cases due to start were adjourned - hence gaps in diary.
AH: you were asked about opps. email from Christine {?}

Private bail application - AB says thanks but I'll pass. Is that an eg of bad clerking
RM: It's shocking to be offered £350 for bail application and turn it down and then blame the clerks.
AH: email from AB on 18 Feb to CT and CC - saying she would be away from 19 Feb.

There was a telephone hearing on 25th.
RM: yes
AH: in your wit state - you were taken through chart. was a comparator brought up?
RM: I think this was a schedule provided by GC
[confusion about which doc]
AH: I'll come back to that

EJ: comparing two charts now?
RM: I may be wrong - I think this was prepared by GC much earlier in proceedings. MHL will know more
AH: look at p3904 - one of these chart was was put to you - prepared by claimant
RM: I don't this these are the right ones
EJ: they're not

AH: I'll leave that point. Re Gatley - the questions put to you didn't show whole email chain. Going to initial request from AB then MG's reply. AB asks for assistance in case and disappointed at MGs reaction. MG says how can you dare to ask for support when you are suing us

AB says you can't have any idea. If you understood everything you wouldn't do this. Did AB provide details to MG?
RM: she didn't. MG finally provided info.
AH: What do you think about ABs point about MG withholding info
RM: he didn't
AH: MG says you're right - I don't know

what's happening Here's the info. AB replied I have passed on recommendation from you to solicitor. Did you see this?
RM: I hadn't
AH: you ask series of questions in Zoom call with AB. Did she explain nature of detriment she had suffered to you
RM: she said MG had spoken to her

appallingly.
AH: in email she raised issue of solicitor and you gave explanation to her
RM: no one knew about MG response until next morning
AH: that recommended expert was under consideration?
RM: yes - no urgency to this
AH: ABs complaint was this was withholding info from

client
RM: the solicitor chose the expert recommended by MG - no detriment
AH: you were asked about tweet that would fall into category of not being free speech. You said inciting violence
RM: yes
AH: AB says that barristers have a higher code of conduct and we are a regulated

profession
RM: yes
AH: looking at BSB report re an anti-semitism complaint - are you familiar with text case of stocker & stocker
RM: am now not before
AH: Thank you, that's all

EJ: Maya Sikand (QC previously at GC) will be next
[MS affirms]
AH: turn to para 48 of your wit statement - do you wish to amend anything
MS: yes please - change to complaint about claimants tweet
BC: good afternoon
MS - good afternoon

BC: turn to wit state please. para 25 - you say that you recall MHL to investigate ABs tweets (25 Oct) and you then note, having read Sunday Times, that you hadn't started your investigation yet
MS: I hadn't looked into anything yet
BC: exchange between SH and Miss Khan refers to

you looking at tweets to see if they are in breach of BSB.
MS: that's right
BC: on 26 oct that you hadn't started collating anything
MS: I don't think so
BC: you had only agreed in principle to be involved. there wasn't a process yet
MS: I can't remember

BC: you were to collate material and review social media in general
MS: you're asking me to interpret what others mean
BC: How does your recollection correspond with this. She says she was told numerous complaints by tweet. were you investigating formal complaint

or collating tweets
MS: I was investigating formal complaint
BC: the complaints procedures hadn't been arranged at this point or what type of investigation it should be
MS: I heard from Mia and was asked to investigate
BC: 29th Oct email from Judy Khan (JK) you understood

that tweets were being collated
MS: I don't recall this email, was I copied in?
BC: you were definitely at the end of the chain, maybe added to chain later
MS: what was question
BC: you were aware that tweets were being collated
MS: that's what it says yes

BC: in the email JK says you had responded to 10 tweets of complaint. Going to response email - JK asks who will talks to AB and when. Were you aware?
MS: Mia sent me everything - complaints policy on 29th but need to see email to see what time
BC: is it fair to say you didn't

know at this point what you were doing
MS: that's right
BC: JK says she's happy to do it - should happen today. Spoken to Mia and Mr De Menenez. You reply to this saying let's decide process first before communication with her. So process hadn't been followed before this

MS: can't say what went on before. I needed to know what structure policy I would be applying
BC: Email from MHL to you and others saying attached complaints policy plus anonymised complaints to website. Go to anonymised complaints please
MS: This has 11 complaints

BC: MHL says she attaches policy, complaints and ABs tweets going back to September. Also said was sending on details of people who complained
MS: didn't need that - just wanted to see complaints
BC: on an email from you (31 oct) - you say you had received more things from David

including messages of support
MS: yes
BC: none of those messages of support was sent to AB
MS: I don't know - that would have been MHL
BC: messages to GC of support for AB - would these be sent to her
MS: it wouldn't have been up to me to do this
BC: those messages could have

contained relevant info
MS: I don't agree
BC: she tweeted about SW policies etc and the cotton ceiling. If those letters of support contained info agreeing with those points - they would be relevant?
MS: if there had been any evidential material, I would have noticed

BC: at this point you haven't specified any material you needed to consider
MS: someone would have had to collate it for me
BC: you needed to get copies of all material GC had to consider everything
MS: yes I did
BC: are you saying that this would include complaints but not msgs

of support
MS: yes
EJ: Time to break for lunch - back at 2pm

@threadreaderapp please unroll