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CPS: Equality and Diversity Expectations Statement : FAQ's

Frequently Asked Questions
Relating to the CPS Equality and Diversity Expectations Statement

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:

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:

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. What are the relevant benchmarks against which to compare data in pupillage and tenancy recruitment monitoring reviews?

Relevant benchmark data to compare applicants for pupillage are provided in the breakdown of BVC Graduate Data published on the Equality and Diversity website (attached).  Benchmark data to compare applicants for starter tenancies are provided by the Bar Council’s pupillage breakdown published on the Equality and Diversity website.  For staff recruited nationally, the Census provides an ethnic minority benchmark of between 7-8%.  The equivalent figure in the Greater London travel-to-work area is between 15-25%.

6. 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.

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

It is recommended that unallocated work and all returns are monitored by ethnicity and gender in chambers.  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.  If briefing practices are identified that disadvantage a particular group (e.g. allocating sex and child abuse cases predominantly to female practitioners) these should be addressed in the clerk’s room and ultimately by the Head of Chambers and the CPS.

8. Meridian Software does not offer an ethnicity, gender or disability field and to monitor either recruitment or work allocation without this facility is too onerous for chambers.

Meridian is redeveloping its software and has agreed, at the request of the Bar Council, to provide ethnic, gender and disability monitoring fields in its new software.  Other software providers are being approached by the Bar Council to provide similar facilities.

9. What is the position of barristers wishing to take CPS work if their chambers do not comply with the CPS’ 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 an annual report to the Joint-Advocacy Selection Committee (JASC), or the JASC takes the view that the chambers are not complying 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 CPS’ Equality and Diversity team.  Ultimately, if the chambers decides not to comply with the statement or it fails to comply, the CPS will decide whether or not it should withdraw work from those chambers.  It is intended that chambers will be given every opportunity to comply and that no hasty decisions will be made.  Should the CPS decide to withdraw work the head of chambers will be invited to discuss this decision with the JASC chair and circuit leader.  The Expectations Statement states that care will be taken to ensure that individual members of chambers do not lose the opportunity to undertake CPS work because their chambers fails to comply without being given a reasonable period of time to make necessary improvements.

10. If I work from chambers on a flexible basis will this impact on the quality of work the CPS sends me?

There should be no barrier to combining a successful career at the Bar with childcare or other domestic responsibilities.  Annexe L in the Equality and Diversity Code provides a range of examples of flexible working arrangements within chambers.  These arrangements may vary according to area of practice but invariably it is possible, with the support of clerks, to make a flexible arrangement work satisfactorily.  For example a court-based practice may not permit working a two or three-day week but it may be possible to take a break between trials.  The Equality and Diversity Code advises chambers to ensure that rental arrangements do not inadvertently restrict opportunities for flexible working. It is the policy of the CPS to support flexible working patterns as far as possible within the confines of the criminal justice system.

11. Can the Bar Council ensure there is consistency between the various equality and diversity standards as set out in the Equality and Diversity Code, BarMark, Practice Management Guidelines and Quality Mark and the CPS Expectation Statement?

The Practice Management Guidelines are currently under review.  Amendments will be made to ensure consistency with the Equality and Diversity Code and, in due course, we expect this to influence the BarMark and Quality Mark standards.  The CPS Expectation Statement is derived from the Equality and Diversity Code and the attached document links each of the statement’s recommendations with the Code recommendations.

12.  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 following are examples of some ‘reasonable adjustments’:

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 JobCentre Plus. Their general aim is to pay, or subsidize, 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.