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Section 2 - Legal and Regulatory Framework
SECTION 2: LEGAL & REGULATORY FRAMEWORK
Statutory Regulation
2.1 Barristers owe a legal duty not to discriminate on grounds of race, sex, disability, sexual orientation or religion or belief and a duty not to discriminate indirectly or to victimise in:
· the recruitment of staff and the selection of pupils and tenants;
· the terms, opportunities for training or gaining experience, benefits and services for prospective or current members of staff, pupils and tenants;
· the termination of service of staff or the termination of pupillage or tenancy, including pressure to leave;
· subjecting staff, pupils or tenants to detrimental treatment.
2.2 Discrimination following termination of the relationship between barristers and staff, pupils or tenants may be unlawful where there is sufficient connection between the relationship and the discriminatory act complained of, for example in the provision of references or post-employment benefits.
2.3 It is unlawful for barristers to discriminate against lay or professional clients in the provision of services on grounds of sex or race or for reasons relating to disability.
2.4 Discrimination “on racial grounds” encompasses nationality, race, colour and ethnic origins.
2.5 Sex discrimination encompasses not only gender but also marital status, pregnancy and gender reassignment. Discrimination on grounds of pregnancy is a particular type of sex discrimination where no comparator is required, so that it is no defence to a claim based on pregnancy that a man absent by reason of sickness would have been treated in a similar fashion.
2.6 Many of the duties apply to barristers’ clerks as they apply to barristers.
2.7 Disability is a legal concept defined in the DDA. It includes not only obvious visible disability but may include conditions such as manic depression or other mental impairment. Particular rules are made in respect of progressive conditions such as cancer. There is a positive duty to make reasonable adjustments to accommodate a disabled person, such as providing communications equipment or alterations to premises.
2.8 Age discrimination will be outlawed as from 2006.
2.9 The relevant statutory provisions are to be found in the Sex Discrimination Act 1975, Race Relations Act 1976, Disability Discrimination Act 1995, Employment Equality (Sexual Orientation) Regulations 2003, Employment Equality (Religion and Belief) Regulations 2003, Disability Discrimination Act 1995 (Amendment) Regulations 2003; EU Equal Treatment, Race Discrimination and Framework Employment Directives.
Bar Code of Conduct
2.10 Para. 305 of the Code of Conduct prohibits discrimination directly or indirectly by a practising barrister in relation to:
· any other person including a lay or professional client, another barrister, a pupil or student member of an Inn of Court
on the following grounds:
· race, colour, ethnic or national origin, nationality, citizenship, sex, sexual orientation, marital status, disability, religion or political persuasion.
2.11 To the extent that discrimination in the provision of services is not unlawful (for example, where discrimination is on grounds of sexual orientation or religious belief), the Code of Conduct makes such discrimination a matter of professional misconduct.
2.12 Discrimination on grounds of age in relation to pupillage and tenancy selection is prohibited unless it can be shown to be objectively and reasonably justifiable, para. 305(ii).
2.13 The Code of Conduct, para. 403 requires a barrister to have regard to this code, which is likely to be taken into account by Courts, tribunals and disciplinary panels in deciding whether discrimination has occurred.
2.14 Paragraph 404.2(d) of the Code of Conduct requires that Chambers
a. appoint at least one Equal Opportunity Officer ; and
b. have a written equal opportunities policy made available to all members of Chambers and staff and to the Bar Council when requested, which shall set out the policy adopted by the Chambers in relation to each of the Action Areas in the Equality and Diversity Code and shall have regard to the recommendations in the Equality and Diversity Code;
c. shall not hold itself out as offering pupillages until the steps set out in a. and b. above have been complied with .
LINK TO GUIDANCE ON THE ROLE OF THE CHAMBERS EOO
2.15 The Pupillage and Funding Requirements 2003, set out in Annexe R of the Code of Conduct, require that
2.16 all vacancies for pupillage are advertised on a website designated by the Bar Council, subject to limited exceptions.
Bar Council Equal Opportunity Policy Statement
2.17 The Bar Council, in pursuit of its constitutional function to represent the interests of the Bar and its statutory functions under the Courts and Legal Services Act 1990, will promote equality of opportunity irrespective of race, colour, ethnic or national origin, nationality, citizenship, sex, marital status, sexual orientation, disability, age, religion or political persuasion.
In accordance with the Code of Conduct of the Bar of England and Wales, discrimination by a barrister is professional misconduct and the Bar Council will take disciplinary action against any barrister or employee of the Bar Council found to have discriminated.
The Bar Council will monitor the effectiveness of its policy and the achievement of its objectives.
Key Concepts
2.18 Unlawful discrimination generally falls into one of three categories:
a. Direct discrimination: where one person is treated less favourably than another was or would be treated in the same or similar circumstances because of a particular characteristic identified in the anti-discrimination legislation (gender, race, disability, sexual orientation or religion or belief);
b. Indirect discrimination: where an apparently neutral provision, criterion or practice has a disadvantageous impact upon a particular group and where the provision, criterion or practice is not a proportionate means of achieving a legitimate aim (for example, holding an internal Chambers training seminar at a time when a particular group of members will find it difficult to attend and when the meeting could reasonably be held at some other time which would not exclude any particular group);
Victimisation: where a person is treated less favourably because he or she has brought proceedings under the anti-discrimination legislation, given evidence or information relating to proceedings or has alleged that unlawful discrimination has occurred (or is suspected of intending to do any of the above).
2.19 It is not a defence to claims for direct discrimination and victimisation that there was no intention to discriminate or that the discrimination was justified, save that discrimination for a reason related to disability can be justified if the reason for the treatment is substantial and material This defence of justification has been applied very narrowly by the courts. In relation to indirect discrimination, treatment may be justified if it can be shown that it is a proportionate means of achieving a legitimate aim but the lack of an intention to discriminate is not a defence.
2.20 Discriminatory treatment may amount to harassment. Harassment is any form of unwanted conduct which is intended to, or which creates the effect of, violating a person’s dignity or which creates an intimidating, hostile, degrading, humiliating or offensive environment for that person. The fact that one person may be able to ignore or deal comfortably with certain behaviour does not mean that it is acceptable if directed at another. A single incident may constitute harassment if it is sufficiently serious. The motive or intention of the perpetrator may be (but is not invariably) relevant. Where harassment is on a ground identified in the anti-discrimination legislation, it will be unlawful. There is a new free-standing definition of harassment contained in various regulations the relevant provisions are the Race Relations Act 1976 (Amendment) Regulations 2003; the Employment Equality (Sexual Orientation) Regulations 2003; the Employment Equality (Religion or Belief) Regulations 2003; and the Disability Discrimination Act 1995 (Amendment) Regulations 2003.
2.21 Any “detriment” on a prohibited ground and in a protected area (e.g. employment and provision of services) will amount to unlawful discrimination. Detrimental treatment includes any treatment which the complainant reasonably perceives as disadvantageous.
2.22 The concepts applicable under the Disability Discrimination Act 1995 (“the DDA”) are in some respects different from other discrimination legislation. The DDA covers claims for direct discrimination which cannot be justified. Barristers and their clerks have a further duty under the DDA to make reasonable adjustments to ensure that a disabled person is not placed at a disadvantage.
Clarifying Some Common Misconceptions
2.23 Proof of discrimination does not depend on showing motive or bad faith. It is possible to discriminate without intending to discriminate. Even treatment which is well-intentioned may amount to discrimination.
2.24 There is no defence of “joke” or “banter”. Jokes and banter which cause offence may be discriminatory even though there was no intention to cause offence.
2.25 Discrimination which involves the more favourable treatment of a member of a disadvantaged group (“positive discrimination”) is unlawful in relation to persons encompassed within the anti-discrimination legislation, save that a form of positive discrimination may be exercised in relation to disabled persons who may require particular adjustments to be made. Applications may be encouraged from groups which are under-represented in an organisation (this is known as “positive action”) but applicants from such groups cannot be positively advantaged in any selection process.
LINK TO DISABILITY RIGHTS COMMISSION EMPLOYMENT CODE
2.26 Individuals from the same protected group may commit acts of unlawful discrimination against each other: a woman may unlawfully discriminate against another woman, for example, or a barrister in one racial group against another member of that group.
2.27 Some common misconceptions can be dispelled by appropriate diversity training or by access to information such as that provided to judges by the Judicial Studies Board’s Bench Book. (see paragraph 1.133)
How Does an Individual Prove Discrimination?
2.28 If there is a difference in treatment and a difference in the relevant identifying characteristic (e.g. gender) of two persons in the same or similar circumstances, an inference of unlawful discrimination may be drawn. It is rare for discriminatory attitudes to be expressed overtly and unlawful discrimination may take place without the perpetrator being conscious that he or she is discriminating. The inference drawing process is the method by which Courts and tribunals test whether there has been unlawful discrimination.
2.29 In looking at whether inferences should be drawn, Courts and tribunals look at factors such as whether there have been assumptions or stereotyping which have influenced the complainant’s treatment.
Sometimes, an organisation may demonstrate a preference for individuals in their own image: “people like us” or someone “whose face fits” or who will “fit in”. Ignorance of cultural difference may lead to the application of inappropriate evaluations of behaviour or attitude.
2.30 An explanation for the difference in treatment which is objectively adequate will usually prevent any inference arising. Good practice gives a large measure of protection. For example, if objective criteria have been applied to all candidates in a recruitment exercise by a panel of interviewers and a reasoned decision has been made and recorded, a Court or Tribunal is more likely to be persuaded that a decision has not been influenced by excessively subjective and discriminatory judgments.
2.31 Whilst the civil standard of proof applies in discrimination cases in the employment tribunal and County Court, the criminal standard of proof applies in disciplinary proceedings for breach of the Code of Conduct. In the employment tribunal and the Courts and employment tribunal in race, sex, religion or belief and sexual orientation discrimination cases, the burden of proof shifts to the employer/ respondent/ defendant where an employee/applicant/claimant establishes facts from which unlawful discrimination could be inferred in the absence of an adequate explanation.
