(Published in COUNSEL magazine, February 2023)
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.
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.
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.
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.