Flexible operating hours (FOH) can make it easier for people to access civil and family justice, but there needs to a lot more work to bring solicitors and barristers on board, research into two pilot schemes has said.
HM Courts & Tribunals Service (HMCTS) would need to consider “how to constructively engage with the wider legal profession” to make FOH work, according to the evaluation of the six-month pilots in Manchester and Brentford, west London, that started in September 2019.
The Manchester pilot involved afternoon and late sittings (2pm to 7pm) in two courtrooms handling civil and non-children family cases. In Brentford, one court sat early (8am to 10.30am) and late (4.30pm to 7pm) to hear civil claims.
The evaluation, conducted by IFF Research and Frontier Economics for the Ministry of Justice, identified a “positive effect” on people’s access to justice, with “some evidence” of reductions in time taken off work and improvements to perceived convenience of hearing times and travel to and from court.
“That said, some legal professionals, legal organisations and court staff raised (largely hypothetical) concerns about FOH sessions being difficult to access for some public users, namely those with childcare responsibilities, those who are financially vulnerable or who do not live near the court.”
The report concluded that, if additional judicial and staff resource was put into flexible hearing times, the Brentford model would enable more cases to be heard within existing courtrooms “and this is likely to be a more convenient option for some members of the public and individual legal professionals”.
However, there were “indications” that the pilot sessions created additional childcare issues for some court staff, professionals and members of the public, “and legal professionals were of the opinion that this risks placing disproportionate burden among women and junior barristers within the legal profession”.
Researchers went on: “This suggests that, if pursued more widely in future, participation in FOH might need to continue to be a matter of choice for some members of the public and legal professionals.”
They stressed the importance of getting the profession onside to make FOH a success.
“This is likely to require further consultation and engagement with solicitors’ firms and barristers’ chambers, to encourage them to adapt their expectations of working hours, and their processes for allocating cases to individual legal professionals, to FOH sessions (particularly to ensure that legal professionals work time-shifted hours where they can, rather than extended hours).”
The pilots had little effect on working hours and workloads for judges and the majority of lawyers reported no impact on their time. But some lawyers’ hours were extended and their workload increased.
“Those with young children reported increased contingency planning with colleagues, friends and family, adding to their workload, and making work/life balance even more challenging.
“Professionals who opted out of the pilot often did so because of their childcare responsibilities and this prevented them from having the time and capacity to accommodate displaced workloads.”
The small scale of the pilots and the few sessions attended by lawyers meant many with childcare responsibilities could accommodate the occasional session, researchers said.
They continued: “Firms and legal professionals raised the likely issues with covering FOH sessions if they were to become commonplace and on a greater scale. For example, establishing new terms and conditions and hiring more professionals available to work different hours.”
Many lawyers and some judges said the pilots had a negative effect on quality of justice. “The most common reason for this was that earlier starts and later finishes to the working day affected the concentration and energy levels of legal professionals.”
However, most parties were satisfied with the outcome of their case – pre-pilot users were more likely than FOH users to be very dissatisfied with the outcome.
Female professionals attending late FOH hearings felt less safe leaving afterwards because of fewer people around and the courts being darker, and travel was “more burdensome for individuals who take public transport to the courts and live further from the courts”.
Last week, the government announced that it would allow judges in criminal courts to impose longer temporary operating hours in a bid to reduce the backlog of cases caused by Covid, despite the profession’s bitter opposition.
An equality assessed acknowledged the potential for indirect sex discrimination against women, as more likely than men to have caring responsibilities.
It put forward various mitigations of the impact and argued that temporary hours were “a proportionate response given the overriding need for local courts to decide how best to respond to the pandemic”.