Annex C - Age Discrimination in Pupillage and Tenancy Selection - Guidance for Chambers

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“A barrister must not in relation to any offer of pupillage or tenancy discriminate against a person on grounds of age, save where such discrimination can be shown to be objectively and reasonably justifiable”. (Code of Conduct paragraph 305.2)
Paragraph 403.2(c) of the Code of Conduct requires all barristers to have regard to this guidance.

The Code prohibits discrimination on the ground of age only. It does not demand any form of positive discrimination in favour of older (or younger) applicants nor any reduction of the selection criteria chosen for the assessment of applications. It relates only to the selection of pupils and tenants and therefore has no application in other areas such as retirement or staff recruitment.

The Equality & Diversity Code for the Bar sets out in detail recommendations for fair selection. These apply equally to the avoidance of age discrimination. Selection criteria should not explicitly or implicitly refer to age but should focus on the skills, abilities and potential of applicants when short listing. Where experience is required this should be stated by reference to years in practice rather than age or years of call.

In particular:

· chambers may still set criteria with regard to levels and types of experience;

· chambers may still consider the record and suitability of an individual who has, for example, pursued a number of careers without success and assess that individual’s suitability for a career at the Bar in the light of that career history;

· chambers may still take account of poor health (subject to the disability legislation) as a factor against an applicant;

· chambers should not screen applications by age nor set upper or lower age limits for pupillage and tenancy recruitment (except in the limited circumstances set out below);

· chambers recruitment criteria should take account of the increased career mobility of barristers and others wishing to join the profession.

Objective Justification for Age Discrimination
The EC Directive 2000/78/EC establishes a framework for equal treatment in employment and occupation. The rule change in the Code of Conduct has been drafted to take account of the Directive’s provisions. New legislation on age discrimination is due to come into effect in 2006 and the Bar Council will review this guidance in the light of the new proposals.

Article 6 of the Directive provides for differences of treatment on grounds of age. In interpreting Paragraph 1 of Article 6 “differences of treatment….which are objectively and reasonably justified” still prohibit the application of a blanket exclusion of all candidates by reference to any age cut off point. A decision to refuse a candidate on grounds of age can be justified only where the individual circumstances, including the professional experience of a particular candidate and the likely length of his or her professional life (a difficult prediction for the Bar), have been fully considered and the chambers has nevertheless concluded for legitimate business reasons that the application should be refused on the grounds of age.

In particular:

· blanket exclusion of candidates by reference to any upper or lower age limit or age range would not be justifiable;

· each candidate must be considered individually in relation to the business needs of chambers;

· chambers are entitled to recover their investment in recruiting and training new pupils and tenants. A period of 5-10 years before retirement would be regarded as reasonable and in the absence of any specific retirement age a national retirement age of 65 could be assumed. BUT it would still be necessary to consider each applicant individually to assess the likely period of practice before retirement or the extent to which an applicant’s previous experience may contribute towards value to chambers or earnings potential over a shorter period. Given that some members of chambers take up full-time Judicial Appointments at an increasingly early stage in their careers and that many barristers in independent practice leave within the first 10 years, it is impossible to make accurate assumptions about how long any individual will stay in chambers;

· some sets of chambers have indicated that they recruit only pupils or tenants with a reasonable chance of applying for Silk or a Judicial Appointment. This is unlikely to be regarded as reasonable because the age/experience bans for appointments are very wide. Even where candidates in the upper age range have no reasonable prospect of advancement nevertheless they may will make a valuable contribution to chambers as successful juniors;

· where a set of chambers, for whatever reason, finds it has an imbalance in the age range of members of chambers it may be justifiable to discriminate in pupillage or tenancy selection in order to secure a balance of ages;

· it is improbable that chambers would be able to justify imposing an upper/lower age limit on the grounds that its clients preferred younger/older barristers;

· assumptions about the reluctance of older applicants to undertake the more mundane tasks of pupillage or accept pupillage supervisors who are younger than them would not amount to justifiable reasons for rejection on the grounds of age.