Action Area A - Recruitment: Pupils and Tenants

A. RECRUITMENT: PUPILS AND TENANTS

General Guidance

1.1 The same broad principles apply to the recruitment of pupils, starter tenants, established practitioners and staff. Discrimination by barristers on the ground of sex, race, disability, sexual orientation and religion or belief in recruitment is unlawful. Discrimination on the ground of age is professional misconduct.

LINK TO CRE, EOC, DRC & ACAS CODES OF PRACTICE- LIST OF WEBSITE ADDRESSES

LINK TO GUIDANCE ON ESSENTIAL TECHNIQUES IN SELECTION

LINK TO GUIDANCE ON AVOIDANCE OF AGE DISCRIMINATION

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1.2 Vacancies should be advertised. A failure to advertise vacancies for pupils or tenants places Chambers and individual barristers at risk of allegations of indirect discrimination. It is good practice to include in advertisements:

· encouragement of applications from groups which are under-represented in Chambers;

· a statement of compliance with the Equality and Diversity Code;

· a statement indicating preparedness to make reasonable adjustments for disabled candidates.

Where Chambers use agencies or head hunters they should ensure that Chamber’s equality policy is included in the instructions given to the agency

Application Forms

1.3 An application form is generally preferable to curriculum vitae. An application form enables the assessment of candidates to be made on a clearly defined comparative basis by reference to specific qualities which are relevant to Chambers’ selection criteria.

Chambers are reminded that reasonable adjustments may need to be made for disabled candidates at the application stage of the recruitment process when, for example, application forms may have to be provided in a particular format.

LINK TO GUIDANCE ON REASONABLE ADJUSTMENTS IN PUPILLAGE AND TENANCY RECRUITMENT AND EXAMPLES OF REASONABLE ADJUSTMENTS

Selection Criteria

1.4 Candidates for pupillage or tenancy should be selected using selection criteria. Selection criteria should be objective and should relate to the work to be done.

· selection criteria enable Chambers to focus on the qualities which they require from the successful candidate.

· they reduce the opportunity for decisions to be influenced by stereotyping or unwitting prejudice.

· selection criteria may be designed so that a higher score is attributed to criteria to which greater importance is attached.

· chambers should avoid criteria that are subjective, such as personality-based attributes or behavioural attributes that cannot fairly be tested at interview.

· it is good practice to provide candidates with selection criteria in advance of the interview.

They promote a consistent and objective approach to candidates by selectors.

Short Listing

1.5 Short listing should be carried out by more than one person and by reference to relevant selection criteria which should be determined in advance of the recruitment process. It is good practice to draft a job or post description and a person specification to assist in identifying the relevant criteria and enable application forms to be drafted in a way which allows candidates to address the criteria. Where shortlisters cannot agree, it may be necessary for a committee to moderate short-listing decisions.

Selection Committees

1.6 All recruitment decisions Chambers make, except for sole practices, should be made by a number of selectors, except in sole practices. Selection committees should, so far as possible, include persons of different age, gender and social, racial or cultural background. They should not include any relative or close friend of the candidates. No candidate should feel that he or she is so remote from the interviewing committee as to be denied a fair prospect of success.

1.7 Where final decisions as to recruitment are made by Chambers or designated members of Chambers rather than the selection committee, no single member of Chambers should be permitted to veto a decision and any challenge to a recommendation of the selection committee should be by reference to the selection criteria and on grounds which are substantiated.

Training

1.8 Members of selection committees should be familiar with this Code and the applicable procedures and selection criteria. It is recommended that at least one member of each selection committee should be trained in fair selection methods.

Interviews

1.9 Interviews should be planned in advance and structured so that each candidate may demonstrate his or her abilities and qualities by reference to each selection criterion. Chambers should ensure that any reasonable adjustment required for a disabled candidate has been made so that disabled candidates are not disadvantaged at interview.

1.10 Interviews should be of sufficient length to enable informed decisions to be made and to minimise the potential prejudices involved in “gut feeling”.

1.11 It is not essential to ask each candidate identical questions, but a planned sequence of topics is recommended.

1.12 Irrelevant questions, such as personal questions in relation to family and personal background should be avoided. However, disabled candidates should be asked what, if any, adjustments may be needed to enable the candidate to practise as a barrister.

1.13 Selectors should score candidates individually on an agreed scale and should then compare scores with others on the panel so as to seek to reach a consensus. Scores should not be adjusted to reflect personal preference.

1.14 Standard exercises either in written form or by way of oral presentation may be a useful aid to arriving at objective assessments of candidates. In relation to pupils and starter tenants, such exercises should be designed in such a way that any area of law covered is one which should be equally familiar to all candidates. Alternatively, a topic may be chosen which requires no prior specialist legal knowledge but is designed to test analytical or advocacy skills.

Record-Keeping

1.15 Candidates who have been rejected may want an explanation for their rejection. If good records are kept, reasons for rejection are generally easily explained in the event of a request or even legal challenge. If explanations for rejection can be given, this should enhance confidence in the recruitment system.

Monitoring and Review

1.16 Candidates should be asked to complete monitoring forms so as to enable Chambers to review their performance by reference to reliable statistics. Monitoring enables Chambers to self-check. It may be that prejudices and attitudes of which selectors are not even conscious are influencing decisions. Monitoring enables these possibilities to be recognised and examined. Where there are significant discrepancies between proportions of applicants from a particular group and proportions of successful candidates from a particular group, recruitment practices may need to be reviewed with a view to redressing observed discrepancies and to achieving diversity in Chambers. If there are no such discrepancies, statistics may support the objectivity of a particular process in the event of a challenge.

1.17 All documents relating to exercises should be retained for two years and statistics should be prepared by reference to gender, race, disability and age of the number of persons applying, being short-listed and being recruited.

LINK TO GUIDANCE ON MONITORING

LINK TO RELEVANT BENCHMARK DATA MAY BE FOUND ON THE BAR COUNCIL WEBSITE, THE EDUCATION AND TRAINING DEPARTMENT WEBSITE AND THE OFFICE FOR NATIONAL STATISTICS.

Recruitment of Pupils

1.18 This guidance is in addition to the matters set out at paragraphs 1.1 to1.7 above.

Pupillage Policy

1.19 Chambers should have a pupillage policy which includes a pupillage selection procedure. The pupillage selection procedure should be made available to candidates for pupillage and should be reviewed regularly.

Advertising Pupillages

1.20 Pupillages must be advertised on a website designated by the Bar Council, save in the exceptional circumstances set out in paragraph 5 of the Pupillage Funding and Advertising Requirements 2003 in Annexe R to the Code of Conduct. Subject to those exceptions, all pupillages must be advertised including supplementary or late vacancies and vacancies for candidates who intend to practise outside the UK (see para. 404.2 (c) of the Code of Conduct).

LINK TO THE CODE OF CONDUCT

Private Arrangements

1.21 Private arrangements to take pupils should not be made, save where the requirement to advertise is disapplied or waived pursuant to paragraph 5 of the Pupillage Funding and Advertising Requirements 2003 (see para. 1.20 above). Private arrangements are contrary to good equal opportunities practice and the Bar Council will not register pupillages by private arrangement. They breach the requirement in the Code of Conduct that pupillages must be advertised.

References

1.22 Where references are sought, a standard form should be used. Alternatively, referees should be directed as to the selection criteria being applied and the type of information which is sought from them.

Recruitment of Starter Tenants

1.23 This section is in addition to paragraphs 1.1 to 1.17 above.

1.24 Every Chambers, which recruits starter tenants, should have a policy in relation to the recruitment of starter tenants. The policy should be made available to members of Chambers and to pupils when they begin their pupillage. Pupils should be informed as to when their Chambers will identify any vacancies for starter tenants and how pupils will be assessed for any vacancies identified.

1.25 Chambers should identify, preferably at a specified time each year, how many starter tenants they wish to recruit. Chambers should, so far as possible with the assistance of the senior clerk, practice director or similar, determine the quantity and the nature of work available, or potentially available, for starter tenants.

1.26 Starter tenancies should be advertised where Chambers do not recruit from among their own pupils.

1.27 Many Chambers prefer to consider their own pupils for starter tenancies and some recruit all pupils with a view to a tenancy. This is not objectionable provided that pupillage selection procedures have been fair and non-discriminatory.

1.28 Whichever approach is taken, the following guidance is recommended:

· all candidates for starter tenancies should be assessed according to an objective and transparent system of assessment, which may include an interview, and against the same criteria;

· assessments in relation to the candidates’ demonstrated abilities and potential should be obtained from a wide range of sources by reference to relevant criteria;

· the sources will include records of any formal assessments of pupils conducted during their pupillage, assessments by barristers for whom the candidates have carried out work, including but not confined, to pupil supervisors, and feedback from instructing solicitors by whom candidates have been instructed;

· all comments provided in relation to candidates should be considered solely by reference to the agreed selection criteria.

1.29 Chambers should aim to identify ability and potential with objectivity, filtering out so far as possible the subjective loyalties and favouritisms which may be felt by individual members of Chambers (in particular pupil supervisors) to particular pupils and the converse, such as subjective dislikes based on personal prejudice, whether conscious or unwitting.

1.30 Candidates for starter tenancies should be assessed by a committee of at least three members of Chambers, wherever possible excluding pupil supervisors who have supervised any of the candidates.

1.31 The decision to offer a starter tenancy should be made either by the committee as a whole or, on recommendation by the committee, by all or a substantial proportion of the members of Chambers.

Recruitment of Established Practitioners

1.32 Reference is made to the general guidance at paragraphs 1.1 to 1.17 above.

1.33 Vacancies for established practitioners should be advertised.

1.34 Exceptionally, Chambers may identify or may be approached by individuals or groups of established practitioners with particular experience or expertise in the field(s) in which the Chambers practises. In those circumstances, it may be legitimate to recruit without advertisement provided that such recruitment can be justified both in terms of Chambers’ real business needs and in terms of the skills of those recruited. Chambers should be aware that recruitment of this nature may give rise to allegations of discrimination.

Mini-Pupillages

1.35 Where Chambers are unable to offer mini-pupillages to all who apply, Chambers should organise their mini-pupillages in such a way as to ensure equality of opportunity, so far as practicable, by applying objective criteria. Where mini-pupillages are assessed, the same or equivalent assessment materials should be provided to all candidates, who should be assessed by at least two assessors applying the same criteria.