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AG: Equality and Diversity Expectations Statement: FAQ's

1. What is Positive Action?

Positive Action is the term used for measures taken under the provisions of the Race Relations and Sex Discrimination Acts where one sex or racial or ethnic group is under-represented in particular areas of work.  Positive Action through encouragement, training and development of potential is an important part of any equal opportunity programme.  It should be taken only in the context of such a programme and where the conditions of under-representation are established through the regular review of ethnic and gender monitoring data.

Positive Action measures enable recruiters to encourage applications from suitable ethnic minority candidates or women so that they can be considered equally with other candidates.  Under some circumstances it may be appropriate to offer training of ethnic minorities and women to assist them to compete for work where they are under-represented.

2. Does the requirement to take Positive Action conflict with the requirement for open competition in pupillage and tenancy recruitment?

No, Positive Action are special measures taken before selection.  It is unlawful to discriminate in favour of women or people from ethnic minority backgrounds in the arrangements made for shortlisting or selecting candidates for appointment.  Positive Action does not permit the selecting of ethnic minority or female candidates irrespective of merit for the purposes of increasing diversity among shortlisted or appointed candidates.  Recruitment to chambers should follow open advertisement and be based on objective selection criteria related to the work to be done.

3. What form of Positive Action will be appropriate to chambers?

Women and members of ethnic minority groups are well represented among graduates of the Bar Vocational Course and, if the applicants to your chambers are not from diverse backgrounds, you may wish to consider the following Positive Action measures:

• Review marketing materials to ensure that the messages they give to prospective candidates are welcoming and inclusive and make reference to chambers commitment to its equality and diversity policy;  
• Particularly encourage members of under-represented groups to apply to chambers;
• At recruitment fairs, provide information about chambers’ equality and diversity policies and opportunities within chambers.

Career development support provided by chambers to pupils and junior tenants will influence their opportunities to obtain senior appointments or positions as experienced practitioners.  Chambers could ensure regular feedback sessions for working pupils and practice development meetings for junior tenants (see recommendation para. 1.48 in the Equality and Diversity Code for the Bar).  Chambers could set up mentoring schemes whereby a junior tenant may be a pupil’s mentor and a junior tenant may be linked to a more senior member of chambers who can offer advice and guidance regarding practice development in a mentoring role.  This would be relevant also to barristers returning to practice following a career break.

4. How frequently should we review equality and diversity recruitment monitoring data?

Data should be checked after each major recruitment exercise or at least, annually.  The data should be obtained from an ethnic origin, gender and disability monitoring form attached to the application form (see Annexe E of the Equality and Diversity Code for the Bar).  If an application form is not used all candidates responding to an advertisement, or seeking a position, should be sent a monitoring form at the outset of the process.  Statistical summaries should be produced which identify applicants by ethnicity, gender and disability for each of the following stages of the process:

• Applications
• Shortlisting  
• Interviews  
• Appointments

Differential success rates at any stage should be investigated to ensure that there is no direct or indirect discrimination in the treatment of candidates.  Under-representation at the application stage may indicate the need for Positive Action measures.

5. Our chambers is small and recruits staff and tenants infrequently and only has one pupil per year.  It is hard to achieve diversity in chambers with such a low level of recruitment.

In these circumstances patterns of representation will take years to become apparent.  It may not be possible to discern much from one year’s figures but they should indicate whether chambers is attracting a diverse group of applicants.  If not, the Positive Action measures referred to above should be considered.  It is recommended that data on previous years analyses be compiled so any trends can be identified over time and, if necessary, addressed.

6. Is it necessary to conduct diversity monitoring of work allocation when established tenants in chambers receive very little unnamed work?

Even though there is much less unallocated work on the AG’s panels than on the CPS panel it is nevertheless still necessary to monitor pupils and junior tenants access to work by disability, ethnicity and gender and, in so far as there is any unallocated work, to monitor that in the same way.  There should be regular reviews of work undertaken by pupils and junior tenants to ensure that they have the opportunity to develop their practices in a fair and equal manner and that stereotypical assumptions about suitable areas of work for particular groups are not influencing patterns of instruction and allocation to them.  Guidance is offered in Action Area B of the Equality and Diversity Code.

7. What is the position of barristers wishing to undertake Government work if their chambers do not comply with the AG’s Equality and Diversity Expectation Statement?

It is hoped that there will be few barristers in this position given the new requirements in the Code of Conduct that chambers appoint an Equal Opportunity Officer and have a written equality policy consistent with the action areas in the Equality and Diversity Code.  Where a chambers fails to provide the reports requested or do not otherwise comply with the statement, the chambers will be given the opportunity to meet the standard required.  Guidance will be available from the Equality and Diversity Advisers at the Bar Council and from the Treasury Solicitor’s Department.  Ultimately, if the chambers decides not to comply with the statement or it fails to comply, the Attorney General will have to decide whether instructions can continue to be given to members of those chambers.  It is intended that chambers will be given every opportunity to comply and that no hasty decisions will be made.  The aim is to encourage chambers to make the necessary improvements rather than to deprive members of those chambers of the opportunity to undertake Government work.

8.  What can chambers do to ensure that disabled applicants are not put at any disadvantage in the recruitment  process? 

Under the Disability Discrimination Act all chambers are under an existing duty to have completed adjustments (including alterations to the building and reviews of processes and procedures) to make chambers and the services it offers accessible to disabled persons. The work already completed will make adjustments for the recruitment process much simpler.

It is convenient to consider, firstly, reasonable adjustment for the recruitment process. Any advertising of vacancies should not put disabled persons who may wish to apply at a disadvantage, and the whole process should be accessible. The Disability Discrimination Act places a positive duty on barristers in chambers to make reasonable adjustments to accommodate a disabled person. At this stage the objective is to ensure that the disabled applicant has the same opportunity of success as an applicant without a disability. The applicant should always be consulted about the adjustment as he or she is an expert. All tenants and staff dealing with applications should be fully briefed on this duty.

In determining what is reasonable the following should be taken into account:

• The effectiveness of the adjustment in overcoming the disability; 
• How practicable is the adjustment;  
• The cost of the adjustment. The resources of chambers are relevant but the availability of assistance from  other sources should be considered.

The following are examples of some ‘reasonable adjustments’:

• Applicants submitted in alternative formats to the standard written application form such as an on cassette tape or electronically;  
• Accessible venue provided for the interview

The work previously undertaken may help so that, for example, an interview could use the procedure used for a conference in chambers for a client with the same or similar disability.

Chambers should brief its members and staff that any request for an adjustment will be fully considered and agreed to if reasonable. There should be a procedure to consider each such request. This could be delegated to, or involve, the chambers Equal Opportunity Officer and another senior member. In some cases chambers may find it helpful to consult a disability charity, which works in the relevant disability field, or some other expert. The objective is to ensure that a disabled applicant can take part in the normal recruitment and interview process, and the procedure to consider adjustments should not be complex or cumbersome.

Once a disabled applicant has been successful further or different adjustments may be required. The individual should be able to obtain funding for some assistance and equipment through the Access to Work Scheme, administered through local offices of JobCentrePlus. Their general aim is to pay, or subsidise, the disability costs leaving the business costs to the individual or chambers, so that the disabled person can work more effectively.

Chambers may need to make some further adjustments. The chambers’ Equal Opportunity Officer in conjunction with another senior member could consider these, as for recruitment. While broadly the same factors apply as for recruitment, what is not reasonable for an interview may be reasonable for a successful applicant. By considering these adjustments with the disabled person chambers may be able to improve facilities for disabled clients, to whom chambers also owes a similar duty to make reasonable adjustments.

9. Where can I find out more about the Attorney General’s Civil and Criminal Panels?

There is more information on both the Attorney General’s website and the Treasury Solicitor’s website.