Positive Action Guidance

“Positive action” is the term used for permitted measures under the Sex Discrimination and Race Relations Acts to remedy the under-representation of men, women or members of different racial groups in the work force. These measures relate to special encouragement and in some cases training to assist under-represented groups to compete for work. Following any positive action programme, participants must compete for any position or work on equal terms with all other applicants and any appointments must be on merit. Positive discrimination in favour of men, women or particular racial groups at the point of selection is unlawful.

Under-representation arises where there is ongoing and enduring under representation of women, members of ethnic minorities or disabled people as barristers compared to their representation in the wider applicant pool or in the population at large. In the case of pupils the relevant comparison might be with the proportion of the group among BVC graduates excluding overseas students. Approximately fifty percent of BVC graduates are female and twenty-five percent are home BME students.

Where under-representation is established, chambers should consider taking the following positive action measures:

Using messages in recruitment advertisements or literature that particularly encourage under-represented groups to apply to chambers
Publicising mini-pupillage and pupillage opportunities to under-represented groups by using media that targets these groups and by messages that particularly welcome applications from these groups
Visiting universities or BVC providers known to have a strong representation among the students of the under-represented groups and encouraging applications from them
Including in careers visits members of the under-represented groups from your Specialist Bar Association who are established in practice as role models.

Separately to positive action disability legislation requires barristers to make “reasonable” adjustments to the recruitment process and working environment to remove barriers for disabled people. For example this may include changes to the physical environment, the types of duties undertaken or provision of accessible IT equipment. Making clear chambers’ willingness to make reasonable adjustments and providing information on chambers’ level of accessibility will encourage disabled applicants. Guidance and financial help for reasonable adjustments is available through the government’s Access to Work scheme.

Collecting and examining equalities monitoring information will help determine the need for and type of positive action or other measures appropriate to the particular set of chambers. Data should be analysed after each major recruitment exercise and at least annually. Each stage of the selection process should be analysed from application, to shortlisting and, finally, appointment. At each stage the proportion of disabled, male and female applicants, and applicants from different ethnic groups should be checked. Equalities data on mini pupils should also be collected and examined. Further guidance on analysing monitoring data is included in the Equality and Diversity Code, Annexe E.

The under-representation of particular groups among applicants or mini pupils should lead to the re-examination of advertising methods, re-targeting of adverts and careers visits with content that encourages interest in chambers from the under-represented groups. If equalities data show that the under-represented groups are represented among applicants and mini pupils, chambers should identify the reasons why the groups fail to make it through the selection process and seek to adjust any chambers processes that appear to be excluding applicants for reasons unrelated to merit. If under-represented groups are obtaining mini-pupillages and pupillages, chambers should identify the reasons why the groups fail to stay in chambers on completion of pupillage.

Work allocated to chambers’ pupils and pupils’ training experience and opportunities should be examined to ensure chambers’ practices do not unfairly or unintentionally disadvantage particular groups. For example, do opportunities to socialise and develop working relationships within chambers favour some groups more than others? Positive action requires the creation of measures that encourage all groups within chambers and create new opportunities for those that have been disadvantaged or excluded. Equality and diversity training for chambers’ clerks, staff and members will help to create a more open and welcoming working environment that will encourage the under-represented groups to stay in chambers.

Equality and Diversity Committee
Bar Council
February 2009