Why doing just enough on EDI is not enough: Chris Kelly highlights the benefits of best practice, and provides a refresher on the requirements

Chambers are fast realising that robust Equality, Diversity & Inclusion (EDI) strategies are not merely tick-box exercises but essential components in best practice, attracting talent and accelerating success.

Sets that are committed to raising awareness, understanding compliance regulations and promoting a diverse culture where all individuals (barristers, clerks, staff, clients) are respected and treated fairly, create an environment in which all can thrive. EDI policies help attract talent, retain members and staff and underpin innovation which is easier to drive forward in an inclusive atmosphere. Chambers that are compliant with legal and regulatory requirements avoid financial penalties, sanctions by the BSB and potential reputational damage.

Clients who insist on diversity will gravitate towards those chambers who hold these values dear and evidence this commitment; an alignment of ideals that will often generate additional revenue. The bar is raised only when the teams put forward draw on the broadest available pool of talent and experience.

Championing EDI is good practice not just in work but in life in general. A sound understanding of the issues helps us to support family and friends, as well as colleagues and clients. All in all, it makes good sense.

So, is there still a problem?

Despite encouraging progress, the statistics still make worrying reading and these are corroborated by a number of decisions handed down by the disciplinary tribunals over the last few years. According to Barristers’ Working Lives 2021:

• Nearly one in three barristers have personal experience of bullying/harassment/discrimination in the past two years.
• Fifty three per cent of all barristers with Black/British African and Caribbean backgrounds reported facing bullying, harassment and/or discrimination at work.
• Female barristers from non-White backgrounds are four times more likely to face bullying, harassment and discrimination compared to White male barristers.
• Forty five per cent of barristers with a long-term disability faced bullying, harassment and discrimination compared with 27% of those with no disability.
• Six in 10 at the Young Bar subjected to bullying and harassment attributed blame to other barristers.

Regulatory requirements

The creation and implementation of an EDI framework can ameliorate many of these unsatisfactory behaviours. The BSB Handbook requires that a self-employed barrister must take ‘reasonable steps’ to ensure that their chambers has in force a written statement of policy on EDI, and a written plan for implementing the policy.

Equality and Diversity Officer

Chambers must have at least one Equality and Diversity Officer (EDO) who should be a senior member. Some have gone further, appointing two or three EDOs with one being a KC and the other(s) a senior junior. A committee should be established to assist, with at least one senior member of staff elected.

Training

There are a number of mandatory and best practice training modules for members and staff:

• Every member of a selection panel must be trained in fair recruitment and selection processes.
• All staff and members are required to undertake comprehensive anti-racism training.
• General E&D training should be provided.
• Anti-bullying and harassment training – this has become a major issue at the Bar due in part to the adversarial nature of the profession. Many sets have taken the initial step to raise awareness of this issue, highlighting real-life experiences of bullying or harassment suffered by their colleagues.
• Recognition of different E&D issues, including menopause, dignity and disability training. Progressive sets have organised training on these areas and have implemented policy in-house or via external providers.

Anti-racism obligations

Regulatory obligations with regard to anti-racism ensure all chambers must:

• Complete a specific race equality audit.
• Design and implement an action plan to tackle any underrepresentation shown in the audit. Targets and time frames should be set to meet goals.
• Ensure all staff and members undertake comprehensive anti-racism training.
• Produce and publish an anti-racism statement for members, chambers and the public.

Fair recruitment processes

Recruitment and selection processes should use objective and fair criteria for hiring. This applies to pupillage recruitment as well as lateral tenancy applications. In practice any individual who has any input/say on chambers recruitment should undertake fair recruitment training.

Fair access to work

The affairs of chambers must be conducted in a manner which is fair and equitable for all members and pupils, including monitoring fair allocation of work. Chambers will benefit from investing in specific software to help manage the process and deliver reports. Work can then be analysed and any inequalities rectified.

Ongoing monitoring of equality

Chambers must regularly review its E&D policies and ensure implementation. This review should be completed annually to help analyse trends. Should remedial action be required, steps should be taken as a matter of priority.

Anti-harassment policy

Chambers are required to have a written anti-harassment policy which, as a minimum states that:

• Harassment will not be tolerated or condoned.
• Procedures should be put in place for dealing with complaints.

Some chambers have set up working groups which meet regularly to discuss incidents of harassment and bullying as well as formulating strategies to tackle these issues.

Discrimination

Quite simply, a barrister must not discriminate. The core anti-discrimination duty is set out in the BSB handbook and prohibits discrimination, victimisation or harassment by a barrister directly or indirectly. Any member who witnesses discrimination should raise the issue immediately to their EDO.

Parental leave

Chambers is required to have a parental leave policy, which must cover as a minimum:

• The right of a member of chambers to take parental leave.
• The right of a member of chambers to return after a period of parental leave, provided the total leave taken does not exceed a specified maximum of one year duration.
• Other areas including guidelines on flexibility of leave, right to continue fee paid work and chambers’ rent.

Flexible working policy

Chambers is required to have a flexible working policy which covers the right of members and staff to take a career break, work part-time, work flexible hours or to work from home, so as to enable them to manage their family responsibilities without giving up work.

Implement reasonable adjustments policy

The BSB Handbook requires chambers to have a reasonable adjustments policy covering all members, pupils, staff, mini-pupils, clients and visitors.

Appointment of a diversity data officer (‘DDO’)

A DDO must be a member of chambers. They are required to ensure that chambers has in place a written policy on the collection, publication, retention and destruction of diversity data. A chambers-wide diversity audit must be conducted at least every three years.

The DDO should work alongside the EDO(s) to analyse data by race, gender and disability. Subsequently, assisting in setting appropriate goals in the chambers’ E&D action plan.

Above and beyond

Despite some of the negative stats outlined, there is real appetite for change. Many sets have not only realised minimum requirements, but have gone above and beyond to ensure best practice. Others have demonstrated innovative ideas and behaviours to promote EDI, which bodes well for the profession and those whom they serve.

Please click here to see the original article, published in Counsel magazine on 13th February 2023