CD 8

Question 1

Rule and grounds upon which you must not discriminate

Answer 1

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You must not discriminate unlawfully against, victimise or harass any other person on the grounds of:

(i) Race,
(ii) Colour,
(iii) Ethnic or national origin,
(iv) Nationality,
(v) Citizenship,
(vi) Sex,
(vii) Gender reassignment,
(viii) Sexual orientation,
(ix) Marital or civil partnership status,
(x) Disability,
(xi) Age,
(xii) Religion or belief,
(xiii) Pregnancy or maternity.

Question 2

CD 8

Answer 2

You must NOT DISCRIMINATE unlawfully against any person

Question 3

What are the grounds called?

Answer 3

Protected characteristics

Question 4

What act is relevant to CD 8?

Answer 4

The BSB Handbook Equality Rules provides definitions of some of the key concepts involved in the discrimination rules and explains when and where they apply to barristers’ practices. It also sets out those parts of the Equality Act 2010 which relate specifically to the Bar.

Question 5

How is the duty applied?

Answer 5

The requirement not to discriminate applies to ALL BARRISTERS in ALL ASPECTS OF HIS OR HER PROFESSIONAL LIFE. The requirement applies to a barrister’s relationship with “any other person” in the course of his or her professional dealings.

Question 6

What relationships are covered by CD8?

Answer 6

The requirements may be interpreted as covering the following relationships:

(i) Clerks and other chambers’ staff;
(ii) Clients;
(iii) Instructing solicitors and their staff
(iv) Court staff;
(v) Judges;
(vi) Other barristers;
(vii) Pupils.

Question 7

What are the two main areas that prohibit discrimination?

Answer 7

Discrimination is prohibited in two main areas:

(i) EMPLOYMENT;
(ii) SERVICE DELIVERY; (but age and marriage/civil partnership characteristics are excluded under this head).

Question 8

How are barristers and clerks specifically covered in the equality act?

Answer 8

Barristers and their clerks are specifically covered by the legislation in the following areas:

(i) The arrangements for RECRUITING tenants and pupils;
(ii) The TERMS on which tenancy or pupillage is OFFERED;
(iii) The TERMS on which pupils or tenants are RETAINED;
(iv) The way in which pupils or tenants are afforded ACCESS TO OPPORTUNITIES for training or gaining experience or for receiving any other benefit, facility or service;
(v) The TERMINATION of tenancy or pupillage;
(vi) The HARASSMENT of pupils or tenants;
(vii) The VICTIMISATION of pupils or tenants;
(viii) ANY DISCRIMINATION against barristers including victimisation or harassment.

Question 9

What are the key types of discrimination?

Answer 9

The main categories of unlawful discrimination are:

(i) DIRECT DISCRIMINATION
(ii) INDIRECT DISCRIMINATION

Question 10

What is direct discrimination?

Answer 10

DIRECT DISCRIMINATION:

(1) Occurs when a person treats another LESS FAVOURABLY than they would treat others because of a PROTECTED CHARACTERISTIC;
(2) Direct discrimination can NEVER be justified (with some very limited exceptions which are not relevant here);
(3) Discrimination can be based on a FALSE PERCEPTION. Thus, if a person discriminates against another because he mistakenly believes that person is gay, it remains discrimination even though the belief is incorrect.

Question 11

What is indirect discrimination?

Answer 11

INDIRECT DISCRIMINATION

(1) Occurs where an apparently NEUTRAL PROVISION, criterion or practice has or would have a DISADVANTAGEOUS IMPACT upon a particular group compared with others.
(2) Indirect discrimination CAN be justified if it is a PROPORTIONATE MEANS OF ACHIEVING A LEGITIMATE AIM.

Question 12

Can discrimination ever be justified?

Answer 12

Indirect discrimination CAN be justified if it is a PROPORTIONATE MEANS OF ACHIEVING A LEGITIMATE AIM.

Question 13

What must be done to accommodate those with protected characteristics?

Answer 13

REASONABLE ADJUSTMENTS

(i) Where a provision, criterion, physical feature or practice puts a DISABLED person at a substantial disadvantage in comparison with non-disabled people, then there is a duty to take REASONABLE STEPS to avoid the disadvantage.

Question 14

What is harassment?

Answer 14

HARASSMENT:

(i) Is any form of unwanted conduct related to a PROTECTED CHARACTERISTIC which has the effect or purpose of VIOLATING A PERSON’S DIGNITY, or creating an intimidating, hostile, degrading, humiliating or offensive environment.
(ii) A single incident may constitute harassment if sufficiently serious.
(iii) The motive or intention of the perpetrator may be (but is not necessarily) relevant.
(iv) Harassment can constitute a criminal offence.

Question 15

What is victimisation?

Answer 15

VICTIMISATION

(i) A person victimises another person if s/he subjects that person to a DETRIMENT because s/he believes that person has done or is about to do a PROTECTED ACT, such as:
(1) Giving evidence in proceedings relating to discrimination;
(2) Bringing proceedings relating to discrimination;
(3) Making an allegation of discrimination.

Question 16

What is positive action?

Answer 16

An important concept in the Equality Handbook

POSITIVE ACTION

(1) This allows a person to take any step to encourage or enable a group with a shared protected characteristic to overcome or minimise any disadvantage or under-representation or particular need.

Question 17

What if both people have the same protected characteristic?

Answer 17

DISCRIMINATION BY PEOPLE WITH THE SAME PROTECTED CHARACTERISTIC

(1) Individuals with the same protected characteristic can discriminate unlawfully against each other. Thus, a woman can discriminate against another woman, and one Hindu barrister can discriminate against another Hindu barrister.

Question 18

What must discrimination be based on?

Answer 18

Unlawful discrimination must be based on a protected characteristic. It is currently lawful for a member of a political party to discriminate against members of other parties, or for a City supporter to discriminate against a United supporter, for example.

Question 19

Is lack of intent a defence?

Answer 19

Obviously not….

UNINTENTIONAL DISCRIMINATION

(1) A lack of intention to discriminate is NOT a defence to any allegation or claim of discrimination (including harassment or victimisation).

Question 20

What about discrimination in respect of service provisions?

Answer 20

In relation to service provision it is unlawful to discriminate against someone by:

(i) Refusing or deliberately omitting to provide them with the service;
(ii) Refusing or deliberately omitting to provide them with services of the same or similar quality or standard; or
(iii) Refusing or deliberately omitting to provide them with services on the same terms as would otherwise be provided.

Question 21

What aspects of service provision does the duty apply to?

Answer 21

The duty not to discriminate in service provision applies to all aspects of services provided by an individual barrister including, but not limited to:

(i) Accepting instructions;
(ii) Advising in writing or in conference;
(iii) Providing representation at hearings.

The duty also applies in relation to other services provided by a barrister or Chambers, e.g. if Chambers hires out conference rooms it would be unlawful to discriminate against those who use this service.

Question 22

How do you make sure everyone can access your services?

Answer 22

There is an additional duty to make reasonable adjustments to enable disabled people to make use of a service, e.g. ensuring that parts of Chambers are wheelchair accessible to allow clients in wheelchairs to attend for conferences.