Unit 4 Flashcards
What must you ensure in relation to your ability to act independently in the interests of justice? Who do you owe this duty to?
You must ensure that your ability to do act independently is not compromised.
This duty is owed to the court.
What are the outcomes that the Handbook envisages in relation to the duty to act honestly, independently and with integrity?
- Those regulated by the Bar Standards Board maintain standards of honesty, integrity and independence, and are seen as so doing.
- Those regulated by the Bar Standards Board and clients understand the obligations of honesty, integrity and independence.
What must you not do in relation to your duties to act honestly, independently and with integrity?
You must not do anything which could reasonably be seen by the public to undermine your honesty, integrity (CD3) and independence (CD4).
What does your duty to act with honesty and integrity include?
- You must not knowingly or recklessly mislead or attempt to mislead anyone.
- You must not draft any statement of case, witness statement, affidavit or other document containing: (a) any statement of fact or contention which is not supported by your client or by your instructions; (b) any contention which you do not consider to be properly arguable; (c) any allegation of fraud, unless you have clear instructions to allege fraud and you have reasonably credible material which establishes an arguable case of fraud; (d) (in the case of a witness statement or affidavit) any statement of fact other than the evidence which you reasonably believe the witness would give if the witness were giving evidence orally;
- You must not encourage a witness to give evidence which is misleading or untruthful.
- You must not rehearse, practise with or coach a witness in respect of their evidence.
- Unless you have the permission of the representative for the opposing side or of the court, you must not communicate with any witness (including your client ) about the case while the witness is giving evidence.
- You must not make, or offer to make, payments to any witness which are contingent on their evidence or on the outcome of the case.
- You must only propose, or accept, fee arrangements which are legal.
What are the examples in the handbook of things that may reasonably be seen as compromising your independence?
- Offering, promising or giving a gift (apart from items of modest value).
- The giving or receiving of entertainment at a disproportionate level may also give rise to a similar issue and so should not be offered or accepted if it would lead others reasonably to think that your independence had been compromised.
What should you consider if you are offered a gift by a current, prospective or former client, professional client or other intermediary?
You should consider carefully whether the circumstances and size of the gift would reasonably lead others to think that your independence had been compromised. If this would be the case, you should refuse to accept the gift.
Can you breach your duty of honesty and integrity by not corresponding with the other side’s legal representative?
Yes - where the other side is legally represented and you are conducting correspondence in respect of the particular matter, you are expected to correspond at all times with that other party’s legal representative – otherwise you may be regarded as breaching CD3 or Rule C9.
What kind of behaviour is likely be treated as a breach of your duty of honesty and integrity and/or your duty to maintain public confidence in the legal system?
- Breaches of certain rules in the handbook (rC8, rC9, rC10)
- criminal conduct which you are under a duty to report to the Bar Standards Board pursuant to rC65;
- seriously offensive conduct towards others;
- dishonesty;
- unlawful discrimination, victimisation or harassment
- abuse of your professional position
Is there a problem with referring to yourself as a barrister in a context where it is irrelevant?
Yes potentially: referring to your status as a barrister in a context where it is irrelevant but may influence others may constitute abuse of your professional position and thus involve a breach of CD3, CD5 and/or rC8. An example of this might be using professional notepaper in a private dispute.
Under what circumstances do you have to report promptly to the BSB?
If:
- You are charged with an indictable offence; in the jurisdiction of England and Wales or with a criminal offence of comparable seriousness
in any other jurisdiction. - Subject to the Rehabilitation of Offenders Act 1974 (as amended) you are convicted of, or accept a caution, for any criminal offence, in any
jurisdiction, other than a minor criminal offence. - You have committed serious misconduct.
What counts as a minor criminal offence?
Minor criminal offence includes:
a) an offence committed in the United Kingdom which is a fixed-penalty offence under the Road Traffic Offenders Act 1988;
b) an offence committed in the United Kingdom or abroad which is dealt with by a procedure substantially similar to that for such a fixed-penalty offence;
c) an offence whose main ingredient is the unlawful parking of a motor vehicle.
Other than reporting yourself, what should you do if you have committed serious misconduct?
Take all reasonable steps to mitigate the effects of such serious misconduct.
Do you have to disclose criminal convictions or cautions that are spent?
Not unless the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (SI 1975/1023) applies. However, unless the caution or conviction is immediately spent, you must notify the BSB before it becomes spent.
List the things that are included in ‘serious misconduct’. Is the list exhaustive?
- Dishonesty (CD3).
- Assault or harassment (CD3 and/or CD5 and/or CD8);
- Seeking to gain access without consent to instructions or other confidential information relating to the opposing party’s case (CD3 and/or CD5); or
- Seeking to gain access without consent to confidential information relating to another member of chambers, member of staff or pupil (CD3 and/or CD5);
- Encouraging a witness to give evidence which is untruthful or misleading (CD1 and/or CD3);
- Knowingly or recklessly misleading, or attempting to mislead, the court or an opponent (CD1 and/ or CD3); or
- Being drunk or under the influence of drugs in court (CD2 and/or CD7); or
- Failure to report promptly to the Bar Standards Board pursuant to rC65.1-rC65.5 and/or rC66 above or if;
- director’s disqualification proceedings are initiated against you;
- a director’s disqualification order is made against you;
- winding up proceedings are initiated in respect of or against you;
- you have had an administrator, administrative receiver, receiver or liquidator appointed in respect of you;
- administration proceedings are initiated in respect of or against you; - A breach of rC67 above; for example, reporting, or threatening to report, another person as a litigation tactic or otherwise abusively; or merely to please a client or any other person or otherwise for an improper motive.
- Conduct that poses a serious risk to the public.
This is not an exhaustive list.
Are barristers held to the same standard as ordinary members of the public?
No - not be viewed as “paragons of virtue” but still held to a higher standard
What might the BSB do if a barrister’s conduct in their non-professional life is incompatible with the high standards the public expects of them? Why?
Take regulatory action.
Why? -> in the public interest to do so
What two factors make it more likely that the BSB will have a regulatory interest in non-professional conduct?
- Conduct is closely related to professional practice.
- The nature of the conduct is so serious that it is capable of diminishing public trust and confidence in the barrister or the profession, regardless of the context and environment.
When is the BSB unlikely to have a regulatory interest in non-professional conduct?
Where the conduct has little or no impact on their professional practice, or on public trust and confidence in the profession.
How is ‘practising’ defined in the BSB handbook?
Broadly - It means all activities, including the business-related activities, of a practising barrister.
If a barrister is involved in personal litigation are they practicing?
No (para. 23 of guidance on non-professional conduct). Not sure what the situ is if they represent themselves…
Are chambers-related events treated as being part of a barrister’s professional life?
Most likely yes (obviously always fact-sensitive, but very likely so).
The consequences is that conduct during such events engages all the Core Duties and rules that apply to practising barristers.
Which Rules + Core Duties are likely to be most relevant to non-professional conduct?
Core Duty 5: You must not behave in a way which is likely to diminish the trust and confidence which the public places in you or in the profession.
Rule C8: You must not do anything which could reasonably be seen by the public to undermine your honesty, integrity (CD3) and independence (CD4).
What is the basic structure of the BSB’s decision-making process in determining whether it has a regulatory interest in non-professional conduct?
It asks two questions (in this order):
- Is it criminal conduct?
- Is it other conduct that still engages the BSB’s interest?
What is the first question that the BSB asks in determining whether it has a regulatory interest in non-professional conduct (outline in detail)?
Criminal Conduct
Has the barrister been:
a. Charged with an indictable offence in England and Wales;
b. Charged with a criminal offence of comparable seriousness elsewhere; or
c. Convicted of, or accepted a caution for, any criminal offence other than a minor criminal offence (subject to the Rehabilitation of Offenders Act 1974 (as amended))?
What duty do barristers have in relation to criminal conduct? When does the duty apply?
- Report it promptly to the BSB (except ‘minor criminal offences’).
- Applies at all times
What is the consequence of failing to report a criminal offence?
A failure to report promptly is, in itself, a breach of the BSB Handbook that could attract enforcement action.
Does the fact that you have been charged with an indictable offence mean that the BSB will necessarily take action?
Not if you have not yet been convicted. Will depend on all the circumstances, including the nature of the alleged offence, the barrister’s area of practice, and the risk posed.
Does the BSB have a regulatory interest where a barrister has engaged in conduct which could constitute a criminal offence but, for various reasons, the conduct is not reported to the police, or it has been reported but the barrister has not been charged or criminal conduct is not proved? How is that decided?
Possibly - the BSB will consider the conduct in line with the principles applicable to “other conduct” (i.e. non-criminal conduct).
If the conduct in question does not fall within the scope of the principles relating to criminal conduct what is the next question that the BSB asks (explain in detail)?
Other Conduct
Is the conduct sufficiently relevant or connected to the practice or standing of the profession such that:
a. it is likely to diminish public trust and confidence in the barrister or the profession; and/or
b. it could reasonably be seen by the public to undermine the barrister’s honesty, integrity or independence?
In determining whether the conduct is sufficiently relevant or connected to the practice or standing of the profession, we will take into account:
i. the nature of the alleged conduct; and
ii. the context and environment in which the conduct is said to have occurred.
Nature of the alleged conduct: the kind of conduct that might mean that the BSB has interest could include conduct that is
- seriously offensive towards (determined objectively by reference to how reasonable members of the public would perceive the conduct)
- dishonest
- discriminatory
- victimising
- harassing
Context and Environment: the closer the link to professional life the more likely it is that the BSB will have an interest.
- e.g. conduct by a barrister involved in private litigation may well be of regulatory interest to us if, for example, a barrister engages in vexatious
behaviour that wastes the court’s time or fails to comply with court orders
Why might the BSB have a regulatory interest in discriminatory conduct?
Because conduct which demonstrates a barrister’s attitude towards people from certain groups (particularly minoritised and/or vulnerable groups) might indicate how they will interact with people from that group in the future, including how they may provide legal services to them. Such conduct might also alienate clients, future clients, and members of the public who identify as members of that group. This may make them feel uncertain about engaging with the barrister and/or the profession or trusting that the barrister and/or the profession will act in their best interests. This could be seen as a risk to access to justice, and it is therefore likely to be in the public interest to regulate such
conduct.
Is the ability to identify someone as a barrister a necessary ingredient for the BSB to have a regulatory interest?
No but it is likely to strengthen the link
between the conduct and the profession.
What outcome does the Handbook stipulate in relation to non-discrimination?
Those regulated by the Bar Standards Board do not discriminate unlawfully and take appropriate steps to prevent discrimination occurring in their practices.
What is the rule against discrimination?
You must not 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.
Can you withhold your services for political reasons/personal beliefs (state the full rule)?
No
You must not withhold your services or permit your services to be withheld:
1. on the ground that the nature of the case is objectionable to you or to any section of the public;
2. on the ground that the conduct, opinions or beliefs of the prospective client are unacceptable to you or to any section of the public;
3. on any ground relating to the source of any financial support which may properly be given to the prospective client for the proceedings in question.
Does the rule against discrimination only apply if the client is a member of a protected group for the purposes of the Equality Act 2010?
No - applies more broadly.
Can you withhold services on the ground that any financial support which may properly be given to the prospective client for the proceedings in question will be available as part of Criminal Legal Aid and Civil Legal Aid?
No - that would be discrimination.
What are the ‘protected grounds’ for the Equality Act 2010? What is their significance?
Protected grounds:
- race (including colour, nationality and ethnic or national origins)
- sex
- pregnancy and maternity
- disability
- sexual orientation
- marriage and civil partnership
- religion or belief
- age
- gender reassignment
Significance = the law prohibits discrimination on these grounds
What are the main types of prohibited conduct under the 2010 Act?
- direct discrimination (including combined discrimination)
- discrimination arising from disability
- indirect discrimination
- failure to make reasonable adjustments
- harassment
- victimisation
In which areas is discrimination prohibited under the 2010 Act?
- employment
- service delivery (characteristics of age and marriage/civil partnership are excluded)
In relation to what are there specific provisions specific to the Bar in the 2010 Act?
- the arrangements A makes for deciding to whom to offer a pupillage or tenancy
- the terms on which A offers B a pupillage or tenancy
- the terms on which B is a pupil or tenant
- the way in which a pupil or a tenant is afforded access to opportunities for training or gaining experience or for receiving any other benefit, facility or service
- termination of pupillage or tenancy
- harassment of pupils or tenants
- victimisation of pupils or tenants
- discrimination against barristers including victimisation and harassment
How is ‘disability’ defined for the purposes of the 2010 Act?
Definition: A person has a disability if s/he has a physical or mental impairment which has a substantial and long term adverse effect on his/her ability to carry out normal day to day activities.
- Disability includes not only physical disability but also mental impairments such as bi-polar disorder.
- It covers severe disfigurement, progressive conditions and recurring impairments. Specific rules are made in respect of conditions such as cancer, HIV and multiple sclerosis which are deemed impairments for the purposes of the Act.
What additional positive duty applies in relation to the discrimination rules for disability?
There is a positive duty to make ‘reasonable adjustments’ to prevent a provision, criterion or practice, or physical feature of premises, placing the disabled person at a substantial disadvantage.
This duty is placed on individual barristers.
This duty also covers the requirement to provide auxiliary aids for disabled people where reasonable.
If you discriminate against someone on the basis that they are not religious or do not have a particular belief is that still discrimination on the grounds of religion/belief?
Yes
Does ‘sexual orientation’ cover ‘gender reassignment’?
No - they are distinct protected grounds.
To be protected from gender reassignment discrimination is it necessary for you to have undergone any specific treatment or surgery to change from your birth sex to your preferred gender?
No because changing your physiological or other gender attributes is a personal process rather than a medical one.
What does it mean to directly discriminate against another?
A person directly discriminates against another if because of a protected characteristic s/he treats that person less favourably than s/he treats or would treat others.
Can direct discrimination be justified?
No
Exception: certain types of age discrimination that are lawful (e.g. not employing children).
What is discrimination by false perception? Is it lawful to discriminate in this way?
Best illustrated with an example: e.g. discriminating based on the incorrect assumption that someone is gay.
This is not lawful.
What is discrimination arising from disability?
A person discriminates against a disabled person if s/he treats that person unfavourably because of something arising in consequence of that person’s disability and it cannot be shown that such treatment is a proportionate means of achieving a legitimate aim.
What is indirect discrimination?
Indirect discrimination occurs where an apparently neutral provision, criterion or practice has, or would have, a disadvantageous impact upon a particular group compared with others.
Can indirect discrimination be justified?
Yes - if the discriminatory provision, criterion or practice is a proportionate means of achieving a legitimate aim.
What is the example we’re given of indirect discrimination?
If all chambers’ social events took place in the evening which could affect pupils and tenants with primary child care commitments.
Define harassment.
Harassment is any form of unwanted conduct in relation to a relevant protected characteristic which has the effect or purpose of violating a person’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment.
3 types:
- Any form of unwanted conduct relating to age, disability, gender reassignment, race, religion or belief, sex or sexual orientation which has the aim or effect of violating a person’s dignity, or which creates an intimidating, hostile, degrading, humiliating or offensive environment for that person (or, in some cases, a witness to the conduct).
- Where a person engages in unwanted conduct of a sexual nature towards another person and the conduct has one or other of the above aims or effects.
- When a person engages in unwanted conduct of a sexual nature (or related to gender reassignment or sex) which has one or other of the above aims or effects and because the recipient rejected (or submitted) to that conduct treats the recipient less favourably than if they had not rejected or submitted to it.
Can a single incident constitute harassment?
Yes if it is sufficiently serious
Is the motive or intention of the perpetrator relevant in determining whether a person has harassed someone else?
Can be - but is not invariably - relevant.
Define victimisation.
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:
- giving evidence in proceedings relating to an act or acts of discrimination
- bringing proceedings relating to an act or acts of discrimination
- making an allegation of discrimination
- doing any other thing for the purposes of equality legislation or in connection with it
What are some examples of “positive action” that we’re given that people might take against discrimination?
- Providing encouragement to disadvantaged groups to apply for a particular type of work, and/or training to help fit them for that work.
- Providing those from groups under-represented in chambers with additional training and encouragement to apply for positions.
- Advertising in a way that aims to attract people from groups that are underrepresented in Chambers (e.g. through the diversity networks or in Counsel magazine).
Can people with the same protected characteristic unlawfully discriminate against each other?
Yes - a woman can unlawfully discriminate against another woman, or a barrister from one ethnic group can unlawfully discriminate against another member of that group.
Is it a defence to say that you didn’t intend to discriminate?
No
In what ways can you unlawfully discriminate in the provision of your services?
By:
- refusing or deliberately omitting to provide him or her with the service
- refusing or deliberately omitting to provide him or her with services of the same or similar quality or standard and/or
- refusing or deliberately omitting to provide him or her with services in the same manner and on the same terms as would otherwise be provided
Describe the example we’re given of unlawful discrimination in the context of the provision of services.
A barrister agrees to take on a case for a person with impaired hearing but only at an inflated hourly rate and brief fee ‘because of the extra hassle’ that such a case would involve, without any genuine consideration of whether there was real justification for charging higher fees.
Does the duty not to discriminate apply only to the core services provided by barristers (e.g. accepting instructions, conducting conferences, etc.)?
No - also applies in relation to other services provided. For example, where a chambers hires out its conference rooms, it would, on the face of it, be unlawful for the chambers to refuse this service to a religious organisation on the grounds that members of the organisation had views that senior members of chambers considered unpalatable.
Do the discrimination rules relating to the provision of services apply differently to pro bono work?
No - apply in exactly the same way.
What kind of policy must chambers have by law in relation to disability issues?
A reasonable adjustments policy aimed at supporting disabled barristers, staff and visitors.
To which relationships in a barrister’s life does the duty not to discriminate apply?
Relationships with “any other person” in the barrister’s professional life. I.e. with:
- Clerks and other chambers’ staff
- Clients
- Courtstaff
- Instructing solicitors and their staff
- Judges
- Other barristers
- Pupils
N.B. not an exhaustive list
Is there a legal obligation on chambers to ensure the fair distribution of work opportunities amongst pupils and members of chambers?
Yes
What is an example we’re given of one of the things chambers should ensure to allocate work fairly?
Chambers should seek to ensure, where possible, that instructions and briefs are not delivered by solicitors at such times as to preclude those with childcare and other dependent care commitments from being eligible for that work (for example, where a brief is not delivered until Friday afternoon for atrial on Monday). If a brief arrives at the last minute, consideration should be given to whether it can be forwarded electronically, for example by scanning and emailing it. Late delivery of briefs may also disadvantage disabled barristers who may require the court to make adjustments for them which cannot be made on the morning of a trial or hearing.
What is recommended in relation to the fair allocation of work to pupils specifically?
- That there is a policy of actively rotating briefs to ensure that pupils in their second-six receive a fair range of different types of work.
- It is also recommended that reviews with pupils and starter tenants include a discussion of the types of work they have received to ensure that this is supporting their development.
What is recommended in relation to clerks in the interest of the fair allocation of work? Why is this recommended?
It is recommended that chambers provide clerks with diversity training and brief them on the importance of fair allocation of work.
Why? Because they are so important in the allocation of work since they are the clients’ point of contact.
Is it lawful to be discriminatory in instructing a barrister?
No - prohibited by s. 47(6) of the 2010 Act
What should clerks do if they are faced with a request from a solicitor for a request of a barrister of a particular sex or race (or any other characteristic)? Describe the example that we’re given.
Such requests are discriminatory and, therefore, unlawful. Clerks should explain this to the client. If possible they should try to explore
the reasons for the request. It may be claimed in the course of the discussion that the request has originated with the client. This is not a justification. Further discussion between the clerk and the solicitor may help to clarify the reason for the request, which may be based on stereotypical assumptions and it may be possible to meet the underlying need in a non-discriminatory way.
Example
A solicitor asks which male barristers are available to do a trial. The clerk asks why the solicitor is asking for a male barrister, and the solicitor says that the litigation has been very acrimonious, and that the client wants a robust cross-examiner who will not be intimidated by the opposition. The clerk say she cannot put forward counsel on the basis of their sex, but can recommend several barristers who are available and who have reputations as robust and fearless cross-examiners. The list includes both women
and men.
What should clerks do if a solicitor is not willing to modify or withdraw a discriminatory request?
Should the solicitor refuse to modify or
withdraw the request and continue to insist on a discriminatory allocation of work, the work should be politely refused, the clerk should make a full note of the incident immediately, and the solicitor should be reported to his or her professional disciplinary body.
What is the recommendation in relation to practice development meetings? What is their purpose?
Chambers should arrange regular practice development meetings for tenants. The purpose of these meetings is to enable discussion of work allocation, work opportunity and development of individual practices.
Pupil supervisors should discuss these issues with pupils and, where appropriate, the clerks and the Equality and Diversity Officer.
Does the BSB encourage mentoring schemes within chambers? What is the example that we’re given of a mentor scheme that may be a good idea?
Yes - junior barristers for pupils, more senior barristers for more junior barristers
Example: a barrister returning from parental leave may nominate a more senior member of chambers as a mentor who can offer advice and support before and on his or her return to practice.
Where chambers organises events/activities (e.g. marketing, networking, social events, etc.) what does it have to ensure?
That they are organised so that all pupils and tenants can, so far as practicable, be equally involved. This extends to opportunities for pupils and junior tenants to get to know more senior members of chambers and the clerks.
E.g. formal practice may be a good way of integrating pupils and members of chambers and ensuring that marketing and networking opportunities are publicised within chambers and allocated fairly.
Are chambers legally obliged to have a anti-harassment policy?
Yes
What are the minimum requirements of a chambers anti-harassment policy?
Must be in writing. As a minimum:
1. States that harassment will not be tolerated or condoned and that employees, members of chambers, pupils and others temporarily in chambers, such as mini-pupils, have a right to complain if it occurs;
2. Sets out how the policy will be communicated;
3. Sets out the procedure for dealing with complaints of harassment.
Describe the example we’re given of an incident of harassment.
Chambers employs a former clerk, who retired at the age of 65, to carry out various administrative tasks. When he comes into the clerks’ room, the clerks call him ‘granddad’ and make jokes about his free travel pass. He finds it humiliating to have his age constantly referred to in this way, but he feels that he has to go along with the ‘joke’ and says nothing. The clerks’ behaviour is likely to be unlawful and chambers, as the employer, is likely to be vicariously liable.
What particular steps are recommended to chambers to deal with harassment?
- Active promotion of chambers’ anti-harassment policy by people in senior positions;
- Training for those in senior or supervisory roles on how to keep the work environment free of harassment and how to deal with it should it occur;
- Provision of informal means of resolving complaints of harassment in the first instance;
- Designation of an adviser to assist employees and others subjected to harassment. (This is a role which may be carried out by chambers’ Equality and Diversity Officer);
- Independent, objective, sensitive and fair procedure for the internal investigation of complaints; and
- A principle of treating violations of the anti-harassment policy as a disciplinary offence.
What should chambers do if the victim of harassment does not want the offender to be disciplined?
Make an independent assessment of the situation to decide whether disciplinary action should be taken.
How often should written anti-harassment policies and procedures be reviewed?
Regularly and at least every 2 years.
Can a barrister pass on the costs of making reasonable adjustments to the individual or individuals for whom the adjustments are made?
No - this is unlawful
Are chambers legally obligated to have a reasonable adjustments police?
Yes
What should the reasonable adjustments policy cover?
- Should set out the aims of chambers in respect of the provision of reasonable adjustments, i.e. what chambers wishes to achieve through the implementation of the policy.
- The mechanisms in place for a person to ask for an adjustment to be made.
- How decisions on reasonable adjustments will be made and by whom.
- What mechanisms exist to ensure that the relevant factors are considered in reaching a decision as to whether any step is a reasonable adjustment.
What are chambers encouraged to do in relation to equality and diversity issues?
Provide training to all members of chambers, staff and pupils.
Is it enough to let people read the BSB guidance document (instead of providing equality and diversity training)?
No! It’s not a substitute for training.
What should chambers do in relation to its policies, practices and procedures on disability related issues?
Review it periodically to ensure that it still complies with the law and the Handbook.
This review should extend to services which are provided to or on behalf of chambers, to the public or a section of the public, by external service providers such as IT consultants and web designers.
In what three situations is there a duty to make reasonable adjustments?
a. Where there is a provision, criterion or practice which puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled.
b. Where a physical feature puts a disabled person at a substantial disadvantage in comparison with persons who are not disabled.
c. Where a disabled person would, but for
the provision of an auxiliary aid, be put at a substantial disadvantage in comparison with persons who are not disabled.
If information has to be provided to a disabled person to discharge the duty to make reasonable adjustments what format must it be in?
It must be accessible.
If you fail to comply with your duty to make reasonable adjustments for a disabled person what does that amount to?
Discrimination against the disabled person.
Describe the three examples of reasonable adjustments we’re given.
- A solicitor tells a clerk that a client who will be coming to chambers is visually impaired. The clerk asks the solicitor, who has visited chambers before, to discuss with the client whether any adjustments need to be made. After discussion with the solicitor, the client suggests that the conference should start mid-morning so that she can travel on the underground after the rush hour, asks for drinking water to be made available for her dog together with somewhere for it to relieve itself, and asks for any documents which the barrister is preparing for discussion at the conference to be made available to her electronically so that she can adjust the size of the text on her computer.
- Chambers’ premises are on the third floor of a listed building in the Temple. In order to ensure that it can offer services to disabled clients whose mobility is impaired, chambers agrees with the occupants of the ground floor premises the use of conference rooms, waiting and toilet facilities as required, in return for a fee. Chambers does not charge disabled clients an additional fee to cover the cost of using the ground floor premises, but absorbs the cost within its general overheads.
- A sole practitioner conducts conferences in chambers or at the solicitor’s office. If she conducts a conference at the solicitor’s office, she charges for the cost of travel.The barrister has to conduct the conference at the solicitor’s office because chambers premises are inaccessible for the mobility impaired client. The barrister does not pass on to the client the cost of making this reasonable adjustment.
What is the purpose of making reasonable adjustments in the context of providing legal services?
To provide access to the service for a disabled client as close as it is reasonably possible to get to the standard normally offered to other clients who are not disabled.
What should Chambers do on its website in relation to reasonable adjustments and in publicity material?
- State that reasonable adjustments will be made.
- Identify the person or persons to whom requests should be made.
What factors are you entitled to consider in determining whether an adjustment is reasonable?
- The cost of the adjustment
- The practicality of making it
- Health and safety factors
- The size of the organisation
- Whether it will achieve the desired effect
Generally more is expected of larger organisations.
Is a barrister required to fundamentally change the nature of the service they provide in the interest of making ‘reasonable adjustments’? State the example we’re given of a fundamental change.
No - the law requires the removal of barriers to accessing a service but does not require a fundamental change in the nature of the service provided.
Example: if a barrister does not do work on a conditional fee basis, the barrister is not required to accept a case on a conditional fee basis for a disabled person. Making this adjustment would fundamentally alter the nature of the services offered by the barrister.
