Back to C2 Responsibilities of AETOs

2. Fair recruitment and Equality and Diversity

All AETOs are required to abide by the Equality Act 2010, which includes some specific provisions in relation to recruitment of pupils. In addition, the BSB Handbook and the Authorisation Framework have a number of requirements relating to recruitment in relation to equality and the principles of flexibility, accessibility and affordability. These are outlined in this section.

Concerns raised during our consultations about Bar training and from research conducted (covering diversity, barriers to training and differential attainment in outcomes on the BPTC and in gaining pupillage, race equality and experience of women at the Bar) highlight that access to pupillage is one of the biggest barriers to increasing diversity at the Bar. Research conducted into Pupillage Advertising and Selection Criteria contributes to our understanding of which stages of the advertising and recruitment process for pupils give rise to potential barriers of entry to the Bar, particularly for those from underrepresented groups at the Bar.

The Equality Act 2010

2.1) The Equality Act 2010 (“the Act”) consolidates and replaces the numerous Acts and Regulations which previously dealt with equalities law. It recognises the following as ‘protected characteristics’:

  • age
  • disability
  • gender reassignment
  • marriage and civil partnership
  • pregnancy and maternity
  • race
  • religion or belief
  • sex
  • sexual orientation.

2.2) Barristers and clerks are bound by specific provisions relating to the Bar in Section 47 of the Act that prohibits discrimination against pupils, tenants and would-be pupils and tenants, and requires barristers to make reasonable adjustments.

2.3) Section 60 of the Act prohibits pre-selection questions of applicants (including for pupillage or tenancy) about their health or disability save in very narrow circumstances.

2.4) Positive action in recruitment is permitted in certain circumstances under Section 159 of the Act specifically in relation to pupillage and tenancy recruitment.

2.5) As employers, AETOs are subject to the provisions in Part 5 Chapter 1 of the Act, which prohibits direct and indirect discrimination, harassment and victimisation, and provides the duty to make reasonable adjustments.

2.6) As service providers, AETOs are covered by Part 3 (3) of the Act.

BSB Handbook

2.7) The BSB Handbook has a number of requirements in relation to equality. In particular, the following are relevant to pupillage:

BSB Handbook

Core Duty 8 says that BSB regulated persons and unregistered barristers must not discriminate unlawfully against any person.

Rule C12, which applies to all BSB regulated persons apart from unregistered barristers, says that a barrister must not, in his professional practice, discriminate unlawfully against, victimise, or harass, any other person on the grounds of race, colour, ethnic or national origin, nationality, citizenship, sex, gender re-assignment, sexual orientation, marital or civil partnership status, disability, age, religion or belief, or pregnancy and maternity.

Training for those involved in recruitment

BSB Handbook

Rule C110 of the BSB Handbook says that chambers and BSB authorised bodies must take reasonable steps to ensure that:

  • save in exceptional circumstances, every member of all selection panels must be trained in fair recruitment and selection processes;
  • recruitment and selection processes use objective and fair criteria.

The BSB Handbook provides the following guidance:

Guidance C142: training means any course of study covering all the following areas:

a) Fair and effective selection & avoiding unconscious bias

b) Attraction and advertising

c) Application processes

d) Shortlisting skills

e) Interviewing skills

f) Assessment and making a selection decision

g) Monitoring and evaluation

Guidance C143: Training should ideally be undertaken via classroom sessions. However, it is also permissible in the following ways:

  • Online sessions
  • Private study of relevant materials such as the Bar Council’s Fair Recruitment Guide
  • Completion of CPD covering fair recruitment and selection processes

Guidance C144: The purpose of Rule C110 is to ensure that applicants with relevant characteristics are not refused employment because of such characteristics. In order to ensure compliance with this rule, therefore, it is anticipated that the Equality and Diversity Officer will compile and retain data about the relevant characteristics of all applicants for the purposes of reviewing the data in order to see whether there are any apparent disparities in recruitment.

2.8) Feedback from those that have attended face-to-face training in fair recruitment practice indicates that this is the most effective way to engage in training, particularly in aspects such as unconscious bias. For this reason, guidance in gC143 was amended in 2019 to say that training should ideally be undertaken via classroom sessions. This is because reading the Fair Recruitment Guide is an insufficient substitute for the interactive discussions that take place during such training.

2.9) In practice, we recognise that the recruitment process for pupillage, and subsequently into tenancy or employment, can include a large proportion of people in an AETO. It can therefore be challenging to require everyone to attend face-to-face training that is tailored to the Bar. In considering training needs, AETOs should as a minimum consider the role that individuals play in recruitment. For example, those that are involved in determining policies and selection criteria may have different training needs to those involved in interviewing or voting on tenancy decisions. Equally, barristers should, as part of planning and reflecting on their Continuing Professional Development (CPD), consider their role in recruitment and their training needs.

Advertising pupillages

2.10) All AETOs should recruit pupils through a fair and transparent process. All vacancies for pupillage (including assessed mini pupillages) must be advertised on the Pupillage Gateway to ensure equality of opportunity. The advertising requirements were previously specified in the BSB Handbook. The requirement to advertise now forms a condition of authorisation.

Authorisation Framework

It is a condition of authorisation that an AETO will advertise all vacancies for pupillage/work-based learning on a website specified by the Bar Standards Board in the Bar Qualification Manual. This includes assessed mini pupillages that form part of the selection criteria.

2.11) Waivers from advertising requirements will only be granted in exceptional circumstances. Each case will be considered on its own merits.

2.12) AETOs can continue to choose to use the Pupillage Gateway to administer the application process, according to the Gateway timetable. Alternatively, applications can be made directly to AETOs.

2.13) 

Changes coming from 1 November 2020

The BSB already requires, as a condition of authorisation, that all pupillages must be advertised on the Pupillage Gateway. This website is operated by the Bar Council. AETOs must apply for a waiver for any exception. However, there is currently no requirement to adhere to the common Gateway recruitment timetable. The BSB will introduce a requirement, by way of a condition of AETO authorisation, that all pupillage recruitment must be in line with the Pupillage Gateway timetable. This will be effective from 1 November 2020, after which AETOs will need to ensure that each stage of the advertising and recruitment process takes place in accordance with the published timetable (whether they administer their recruitment process on or off the Gateway website).

Note that AETOs do not have to use the Gateway to process applications. We are not proposing any change to this.

One timetable will be mandated, with specific dates set annually. The broad timing, based on the current Gateway timetable, is likely to be as follows:

For AETOS recruiting on the Gateway For AETOS recruiting off the Gateway
(1) Late November - publication of advertisements on the Gateway: AETOs must register their accounts and submit applications for approval. All approved vacancy advertisements will be published for prospective applicants to browse. AETOs who plan to administer their recruitment process through the Gateway must make a payment. (1) Late November - publication of advertisements on the Gateway: AETOs must register their accounts and submit their applications for approval. Applications should include details on how applications are to be made (eg by post or email address). All approved vacancy advertisements will be published for prospective applicants to browse. 
(2) Early January - applications open: the submissions window for applications opens and applicants can start, edit and submit their applications. AETOs will not have access to the applications until the submissions window closes. 2) Early January - applications open: the submissions window for applications opens and applicants can send their applications to the AETO.
(3) Early February - applications close: the submissions window for applications closes and no further applications or amendments to applications are allowed. AETOs can begin to download and assess applications and acknowledge receipt of applications. (3) Early February - applications close: the submissions window for applications closes and no further applications are allowed. AETOs can begin to assess applications and acknowledge receipt of applications.
(4) February to May - shortlisting and interviews: AETOs can sift through applications, shortlist applicants and conduct interviews. They can communicate the status of an application with applicants through the Pupillage Gateway. (4) February to May - shortlisting and interviews: AETOs can sift through applications, shortlist applicants and conduct interviews. They can communicate the status of an application with applicants directly (eg. by post, email or telephone).
(5) Early May - offers made: AETOs will make offers through the Gateway system. All offers will be made on the same day at the same time. (5) Early May - offers made: AETOS will make offers of pupillage (eg. via post or email). All offers will be made on the same day. AETOs are not able to make offers to applicants in advance of this date. They also must not make informal or indicative offers in advance.
(6) Mid-May - deadline for accepting offers: all applicants have a 7-day deadline to communicate acceptance of an offer (if any). Applicants will be able to accept an offer anytime up to the deadline. If the 7-day deadline passes without the applicant accepting the offer, AETOs should send out second round offers within a reasonable time period. (6) Mid-May - deadline for accepting offers: all applicants have a 7-day deadline to communicate acceptance of an offer (if any). Applicants will be able to accept an offer anytime up to the deadline. If the 7-day deadline passes without the applicant accepting the offer, AETOs should send out second round offers within a reasonable time period.

The Bar Council will present their suggested timetable to the BSB annually, together with an equality impact assessment and a written statement of the factors they have taken into account. We will then consider whether to approve the timetable in accordance with the LSB’s Internal Governance Rules and the protocol on regulatory independence between the BSB and the Bar Council.

Waivers from the timetable (or from specific stages of the timetable) will only be considered in exceptional circumstances. We will publish criteria for granting waivers eg. where AETOs recruit both barristers and solicitors to a common timetable, which may be complex to change and not proportionate for us to mandate. Any waivers granted will be listed on our website for transparency so that candidates are aware of all opportunities.

Information provided to applicants

2.14) The content of advertisements was previously specified in the BSB Handbook. The principles that underpin the Authorisation Framework include the principles of Flexibility, Accessibility and Affordability. A number of the criteria for authorisation as an AETO relate to the approach to recruitment and the information that is provided to potential applicants.

Authorisation Framework

AETOs must provide evidence of the following:

35.1. Flexibility that takes into account pupils’ personal circumstances, promotes a more diverse legal profession, and supports the pupil to develop and demonstrate the Professional Statement Competences.

37.1. Commitment to equality and diversity at organisational level, including a specific strategic commitment to:

  • increasing diversity at the Bar;
  • taking active steps to improve accessibility – so that the best candidates are able to train as barristers and that the Bar as a whole better reflects the communities it serves; and
  • compliance with obligations arising under relevant legislation including the Equality Act 2010 and the BSB Handbook.

37.2. A clear strategy for making pupillage/work-based learning accessible and enabling pupils and students to achieve the best outcomes they are capable of in their education and training, as well as to demonstrating the Professional Statement Competences to at least the Threshold Standard.

37.3. Policies and procedures demonstrating an AETO’s commitment to promoting open and fair recruitment (including where appropriate flexible approaches to prior learning and experience). 

37.4. Timely provision of clear, accessible information for pupils and students indicating what Professional Statement Competences they will have achieved during and on completion of their training, enabling them to navigate their own route to qualification, and the next steps available to them.

45.1. The communication of clear, accessible and meaningful information and data as to the affordability of pupillage or work-based learning, the likelihood of being retained post-qualification, and earnings potential.

2.15) AETOs should provide sufficient information in the advertisement and other supporting materials (for example on the AETO’s website) to enable prospective pupils to understand:

  • the AETO itself, eg. the type of work that its barristers do, its size, location and culture;
  • the number of pupillages available;
  • the application process and deadlines, timing of interviews and the criteria that the AETO uses to assess applicants and decision dates;
  • when (on their path to qualification) candidates can apply;
  • the pupillage training programme and what to expect from a pupillage at the AETO;
  • the pupillage award, including expenses and other costs of training that the AETO covers (and what it doesn’t cover);
  • prospects at the end of pupillage and the process for applying for tenancy/employment; and
  • the practical impact of the AETO’s equality and diversity policies.

Outreach activity

Authorisation Framework

We expect AETOs, as a minimum, to demonstrate that they have carefully considered how they could contribute to the following:

Indicator 38.1. Engagement with the wider community to encourage those who are currently under-represented at the Bar to consider it as a career.

2.16) We recognise that the outreach activities that AETOs engage in will vary according to their size and resources. However, research shows that access to pupillage is one of the biggest barriers to diversity at the Bar. Therefore, if your AETO does not currently engage with the wider community in support of the principle of Accessibility, we expect you to give serious consideration to what you might be able to do. 

Examples of outreach activity that AETOs engage in are:

  • Barristers mentor individual students from deprived backgrounds or work with charities that do so.
  • Provision of support or information to local careers services.
  • Outreach programmes with local schools or charities.
  • Joint working through the Specialist Bar Associations.
  • Joint working with the Inns, eg providing practice with applications and interview techniques.
  • Mini pupillages are advertised so as to reach under-represented groups.
  • Mini pupillages are reserved for those who meet certain criteria (eg. neither parent went to university, in receipt of free school meals, raised in care, caring responsibilities) and they are subsequently guaranteed an interview for pupillage.
  • Mini pupillages are paid.

The Bar Council has produced a guide on Corporate Social Responsibility which may help you to think about what your barristers and staff may already be doing, and what more you could do: https://www.barcouncil.org.uk/supporting-the-bar/csr/

Selection

2.17) Selection for pupillage is subject to the Equality Act 2010. AETOs must not unlawfully discriminate against any applicants.  Advertising, selection for interviews, the interviews themselves, the selection for pupillage, the offers made, and written agreements given to pupils are all covered by this Act.

2.18) In addition, the BSB Handbook sets out requirements in relation to recruitment and selection processes, which apply to pupillage:

BSB Handbook

Rule rC110 d, which applies to self-employed barristers, chambers and BSB entities, says that recruitment and selection processes must use objective and fair criteria.

2.19) While the above applies specifically to chambers and BSB authorised bodies, all AETOs must have recruitment and selection processes that use objective and fair criteria.

2.20) Given that access to pupillage is one of the biggest barriers to increasing diversity at the Bar, AETOs should carefully review their advertising and selection processes and criteria and challenge themselves to think about where they may be creating barriers to equality and diversity. Some examples are provided below which may help to reduce unconscious bias, level the playing field for those who do not have connections inside the profession and increase opportunities for social mobility for those who have the potential to succeed.

Reducing barriers to equality and diversity in pupillage recruitment – what AETOs can do

  • Review the information and pictures on the AETO’s website to check if they convey inclusiveness.
  • The pupillage committee could take each of the selection criteria, at each stage of the selection process in turn and challenge themselves to (a) consider whether each criterion might give risk to any inherent bias and (b) robustly demonstrate how each criterion helps to objectively demonstrate potential.
  • Before recruitment starts, publish the selection process and criteria so that they are transparent to potential applicants. Consider how you ensure that they are applied consistently to all candidates.
  • Base your selection criteria and questions at each stage of the process on potential to meet the competences in the Professional Statement and ensure that applicants are given every opportunity at each stage of the selection process to demonstrate their potential.
  • Use “blind” applications (so that the applicants’ name, school and university are not visible to the selection panel).
  • Consider if the weighting of your selection criteria could create a barrier to diversity.
  • Consider introducing flexibility to your academic selection criteria Eg. do not limit applications only to those with first class or upper second class degrees; use a “contextual recruitment” approach to boost social mobility and ensure you do not overlook promising talent.
  • Do not limit applications only to those who have completed unpaid mini pupillages; consider other ways that applicants can demonstrate interest in, or aptitude for a career at the Bar.
  • Provide equal opportunity (through criteria and selection processes) to those who have not undertaken a law degree.
  • Give sufficient notice of the date and time of interviews, to enable candidates to make arrangements necessary for their attendance at the interview. Do not hold interviews at times when potential applicants are likely to be preparing for and sitting exams.
  • Offer and make reasonable adjustments, where appropriate.
  • Consider offering to cover travel expenses through a clear written policy.
  • Form a panel to take decisions on applications, instead of one person alone.
  • Keep a record of decisions taken, with reasons given, that your equality officer can review.
  • Offer practical feedback to unsuccessful candidates.
  • Do not request or rely on references from third parties until the last stage of recruitment.
  • Collect, analyse and act on equality and diversity data from the selection process.

Case study examples:

A report on themes arising from the selection process each year

5 Essex Court provides a wealth of information on its website that gives prospective applicants an insight into a pupillage at the chambers and helps them to understand the application process. This includes an annual “pupillage selection report” that provides applicants (past and future) with insight into the criteria that are used for selection, how these are applied in practice and how applicants performed.

https://5essexcourt.co.uk/join-us/pupillage

Individual feedback to unsuccessful candidates

The BSB’s Supervision team visited a chambers that provides individual feedback to unsuccessful candidates, when requested. One such candidate acted on the feedback he was given and was recruited the following year.

Checking credentials

Authorisation Framework

All AETOs must provide evidence of the following:

Indicator 46.6. How credentials checking is carried out and policies and procedures for reporting fraudulent and/or dishonest activity to the BSB and the Inns of Court as appropriate.

2.21) AETOs must have policies and procedures for carrying out credential checks to ensure that applicants meet the mandatory and other requirements, and for reporting dishonesty to the BSB and the Inns of Court. For pupillage, AETOs must exercise appropriate due diligence in relation to the following:

  • That academic and vocational training components have been satisfactorily completed within the 5 year limit. In accordance with the Curriculum and Assessment Strategy, a person may not start pupillage more than five years after completing the vocational component.
  • That the pupil is a member of an Inn.
  • That the pupil has been Called to the Bar.
  • Immigration visas have been obtained, where relevant.
  • Waivers have been granted by the BSB, where relevant.
  • Any other requirements that the AETO has specified as a condition.

Written agreements

2.22) The offer of a pupillage and its acceptance by the person to whom it is made will give rise to a legally binding contract for education and training (Edmonds v Lawson 2000 [QB 501] (CA)).

2.23) Offers of pupillage may be made by AETOs through the Bar Council’s Pupillage Gateway if the AETO uses the Gateway to administer their recruitment process, or directly if not. In the case of Pupillage Gateway applications, no offers may be made before the date/time specified by the Gateway timetable.

2.24) Changes coming from 1 May 2020.

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