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This procedure covers: members of chambers; pupils of chambers; mini-pupils; chambers’ employees and applicants for positions in chambers. This procedure is applicable to any complaint, grievance or dispute including but not limited to complaints of unfair discrimination or harassment. Complaints from members of the public concerning barristers or the employees of barristers, will be dealt with in accordance with PCCC requirements (see Bar Council website).
These chambers are committed to providing a working environment in which all individuals including members, pupils, mini-pupils, employees, clients and the public are treated with dignity, respect and fairness. No one will be victimised or suffer a detriment because they raise a complaint or grievance in good faith under this procedure.
A copy of the procedure, which includes names of the nominated persons for responding to formal and informal complaints and grievances, will be given to all members, staff, pupils and mini-pupils in chambers and a copy kept in the chambers’ administration manual [or displayed on the notice board].
Confidentiality will be maintained as far as possible and appropriate in the circumstances.
Complaints will be dealt with promptly in accordance with this procedure. A formal complaint must be made as soon as reasonably possible and in any event within six months of the act being complained of, or within six months of the end of any informal action taken, save in exceptional circumstances. A formal complaint, which should be made in writing, will be acknowledged by the Heads of Chambers/nominated member of chambers within seven days’ of receipt. Any investigation will be completed within 28 days of receipt, unless there are good reasons for delay. Investigations will be conducted in accordance with standards of natural justice. Where possible, two members of chambers not directly involved in the complaint will undertake the investigation. All parties to the complaint will be permitted to be accompanied by a colleague or friend at any hearing.
The complainant will receive a written response on the outcome of the complaint with a clear indication of the action chambers will take if the complaint is upheld. Solutions which rely on changes to working arrangements which may unreasonably disadvantage the complainant will be avoided.
If the formal grievance or complaint is found to have substance appropriate steps in the circumstances will be taken to remedy the problem. A brief confidential report on all formal complaints and on the outcome will be made to the Head of Chambers/nominated person and records will be retained for a period of one year from the conclusion of the case with a discretion to keep longer if necessary.
Complaints of grievances are more easily resolved if dealt with at an early stage. Individuals with complaints or grievances are recommended to seek the assistance of one of the nominated members of chambers who will, as far as possible, give confidential advice and assistance. [A list of nominated persons should be appended to this procedure].
Pupils are encouraged to discuss any grievances which they may have during their pupillage with their pupil-supervisors.
In some cases this may not be possible or appropriate and the pupil should then approach the nominated informal adviser (a senior member of chambers, such as the Head of the Pupillage Committee, and a junior tenant will be nominated as informal advisers for pupils). If resolution of the complaint is not possible, the pupil should set out the complaint in writing to the Head of Chambers (or nominated recipient of formal complaints) for investigation.
If a member of chambers has a complaint about a clerking matter, in the first instance he/she should attempt to resolve it with the senior clerk or seek the assistance of the Head of Chambers or other nominated member of chambers. Any other issue may be raised with the Head of Chambers/or Management Committee/or with nominated members of chambers. If resolution of the complaint is not possible through these informal channels, the complaint should be referred in writing to the Head of Chambers/nominated member for investigation.
Chambers’ staff are encouraged to raise any matter about which they are unhappy in respect of their overall treatment within chambers with the senior clerk in the first instance or alternative nominated person, if this is appropriate. Where it is inappropriate to raise the matter with the senior clerk, the matter can be referred to the Management Committee/Head of Chambers/other nominated person. If informal resolution of the complaint or grievance is not possible or inappropriate, a formal complaint should be referred in writing to the senior clerk or, if not appropriate, the Head of Chambers for investigation. Employees have a statutory right to be accompanied at all grievance hearings.
Where a barrister, pupil or chambers employee is disabled there is a duty to consider a reasonable adjustment to this policy. A request for a reasonable adjustment should be made to the nominated members of chambers or to the Chamber’s Equality Officers.
Currently Chamber’s Equality Officers are:
Philip Misner
Rebecca Willoughby
Prashant Shah
Disability is not always visible and many disabled people choose not to disclose their disability. Disability encompasses, for example, certain musculo-skeletal problems, circulatory conditions and mental illness.
We as barristers are likely to come into professional contact with many disabled people including lay and professional clients, colleagues, pupils, members of the judiciary, witnesses and staff within the judicial system.
OBLIGATIONS UNDER THE DISABILITY DISCRIMINATION ACT 1995 (“DDA”)
Obligations are owed to “disabled” persons. The term “disabled” receives a statutory definition in section 1 of the DDA. The disabled person may be the lay client or any person from the instructing solicitors. The duties under this code will also apply to other persons to whom the barrister or Chambers provide services or come into contact (such as witnesses in a case).
Chambers is a “service provider” for the purposes of the provisions of the DDA dealing with discrimination in the provision of services. Chambers therefore owes duties under section 19 of the DDA both to the lay client and to the professional client. An individual barrister will also be a service provider and will therefore owe duties as such under the DDA.
The DDA makes it is unlawful for a barrister or for Chambers to discriminate against a disabled person:
Pro bono cases remain part of service provision and are subject to exactly the same duties as paid cases. Providing conference facilities at Chambers is also deemed to be the provision of a service.
It is also unlawful for service providers such as Chambers or an individual barrister to discriminate in failing to comply with a duty to make reasonable adjustments (section 21 DDA).
The following are the duties owed by a service provider to a disabled person:
It is possible to justify discrimination against a disabled person but only in certain limited circumstances, defined in the DDA.
A service provider discriminates against a disabled person if, for a reason which relates to the disabled person’s disability, it treats the disabled person less favourably than it treats (or would treat) others to whom the reason does not (or would not) apply and it cannot show that the treatment in question is justified (section 20 (1) DDA).
It is not necessary that the barrister knows that the person is a disabled person for less favourable treatment to occur.
It is unlawful to refuse to serve a disabled person or deliberately not serve the disabled person for a reason relating to the disabled person’s disability (section 19(1) (a) DDA).
It is unlawful to provide service of a lower standard or in a worse manner to a person for a reason relating to or the disabled person’s disability (section 19(1)(c) DDA).
It is unlawful to provide a disabled person with a service on worse terms (for example by charging more) for a reason relating to that person’s disability (section 19 (1) (d) DDA).
Chambers should note that the DDA does not prohibit positive action in favour of disabled people (see para. 2.2 for distinction between positive action and positive discrimination). The protection of the DDA confers positive advantages on disabled people in certain respects.
As a service provider, Chambers is required to make reasonable adjustments in several areas unless it can show that the failure to make a reasonable adjustment is justified.
The duty to make reasonable adjustments is owed to disabled people at large and not just individual disabled people. Barristers and Chambers therefore should not wait until a disabled person wants to use their services before investigating the need to make reasonable adjustments. Barristers and Chambers will look at adjustments that we can make on an ongoing basis (whether or not we currently provide services to disabled people). The idea is to anticipate the requirements of disabled people and in order to do this effectively consultation will, wherever practicable, take place with existing disabled clients or disabled potential clients. Whilst this may not be possible to do on an individual basis, barristers and Chambers will consider consulting organisations of disabled persons to obtain their views.
The law requires reasonable adjustments to be made in the following areas:
The service provider has a duty to take reasonable steps to change the policy, practice or procedure which makes it impossible or unreasonably difficult for disabled people to make use of its services.
When considering whether the services of a barrister or Chambers are unreasonably difficult for disabled people to use, account will be taken of whether the time, inconvenience, effort, discomfort or loss of dignity entailed in using the service would be considered unreasonable by other people if they had to endure similar difficulties.
Chambers recognises that it is sensible to try to anticipate the needs of disabled clients rather than acting in a wholly reactive way. Consultation with organisations of disabled people about the needs of a group which may use the services of Chambers will help to give Chambers an idea of the kind of adjustments that it may need to make. Similarly an individual barrister should consider consulting such organisations if he or she anticipates working with a disabled person on a particular case. Chambers therefore indicates and individual barristers should also indicate that reasonable adjustments will be made on request if this will assist disabled people to use their services.
Chambers or a barrister may discriminate unlawfully even if they do not know that a client is disabled. It is worthwhile remembering that not all disabilities are visible. What is important is not to act on assumptions, but to be prepared to ask in advance what reasonable adjustments can be made to ensure that the service of Chambers or the barrister can be used without the disabled person being put to unreasonable difficulty. If it is not reasonable to anticipate a particular requirement the barrister will not act unlawfully if he or she does not anticipate it.
The duty to make reasonable adjustments is a continuing duty, and it may be necessary to make more than one adjustment. The best approach is to consider what changes can be made in practical terms to ensure that the disabled person can use the barrister’s or Chambers’ services without unreasonable difficulty. The disabled person should be consulted about what he or she believes is the best solution. That view is not going to be conclusive and the barrister will have to consider what is a reasonable step to have to take in order to achieve this end.
In deciding whether it is reasonable to take any particular step, consideration will be given to whether it would be effective in overcoming the difficulty that disabled people face in accessing the services of Chambers or the barrister. Consider whether it would be practicable to take the step, and the financial and other costs of making the adjustment. Some steps which are suggested would cause disruption. A certain amount of disruption can be required but not a disproportionate amount. Chambers and barristers are entitled to take account of financial and other resources as well as the amount of resources already spent on making adjustments.
What needs to be borne in mind is the ultimate aim of rendering services accessible without unreasonable difficulty. Making adjustments for one group of disabled people will not absolve the Chambers from making different adjustments for different disabled people.
Providing access to Chambers for any purpose is also covered. Chambers may owe duties to members of the public attending Chambers. If Chambers decides to make adjustments to its premises these should be drawn to the attention of disabled people (for example by a sign). Similarly if it is the intention of Chambers to make its services accessible by providing auxiliary aids, this should be made known.
There is no obligation on Chambers or a barrister to take any steps which would fundamentally alter the nature of its service.
When a barrister or Chambers complies with the duty to make reasonable adjustments they are not entitled to pass on any additional costs of compliance solely to disabled clients.
The duty to make adjustments may affect Chambers’ policies (what it intends to do), its policies (how it plans to go about providing its services) and its practices (what it actually does when providing services).
The barrister or Chambers must take reasonable steps to provide auxiliary aids including equipment or services if these would facilitate disabled people using its services. An auxiliary aid may be the provision of a special piece of equipment but it is more likely, in the case of barrister services, simply to be the provision of some extra assistance to disabled people.
The obligation is to take such steps as it is reasonable for the barrister or Chambers to take in all the circumstances of the case to make it services accessible to disabled people. Therefore consideration needs to be given to the size and resources of Chambers (or the resources of the individual barrister) as well as the cost of providing the auxiliary service.
In terms of physical features the views of people with different disabilities or those representing them are sought, as this may help in identifying barriers and developing solutions. The best approach to removing the effect of physical features on accessibility is to alter the physical feature itself so as to create an inclusive environment. Removal of physical barriers will be preferable to alternative arrangements. There is an inherent loss of dignity for the disabled person in having to use some alternative route for example. It is only if it is not reasonable to remove the physical feature, or to alter it, that such alternative route adjustments will be made.
Both less favourable treatment and a failure to make reasonable adjustments may be justified on specific grounds which are set out in section 20 (4) of the DDA provided that the discrimination is not direct discrimination. Chambers or the barrister must reasonably believe that one or more of the following conditions are satisfied:
Discrimination by barristers as service providers on the ground of race or sex is unlawful. Discrimination on any other ground covered in paragraph 305 of the Code of Conduct is prohibited.
Examples of discriminatory service provision include the following:
Chambers will ensure that members are equipped to provide an appropriate level of service for their clients by arranging diversity training for members of chambers and chambers staff, and by provision of the guidance contained within this code.
Practice Management for the Bar sets out standards and guidelines covering the main areas of practice management. This includes recruitment and a section on personnel management which states the recommended standards for managing staff together with detailed guidance on their implementation. The recommendations for good practice set out above are equally applicable to chambers staff and many of them explicitly include chambers staff.
Recruitment of chambers’ staff will follow the recommendations relating to pupillage and tenancy recruitment wherever appropriate, for example open advertisements, clear and objective selection criteria and panel interviews.
All equal opportunity policy initiatives developed in Chambers will cover staff as well as members of Chambers whenever appropriate. Chambers are mindful that the Equal Opportunities Commission, Commission for Racial Equality and Disability Rights Commission have all developed Codes of Practice in recruitment.
Chambers policy for staff on maternity, paternity and parental leave and flexible working, will meet, at least, the minimum legislative requirements. These provide for:
For help and advice talk to a member of our clerking team. They can advise on the best options for your matter.