020 7650 1200

Two Men Shaking Hands

Committing to change

Lockdown has provided one reminder after another of the inequalities that persist across our planet.

Posted on 02 September 2020

From the death of George Floyd, prompting soul-searching and reflections about racism in our own country, to the roles that age, ethnicity and sex have played in COVID-19 infection and death rates and the unequal impact of the virus on individuals’ daily lives based on sex and disability, there is exigent evidence that inequality continues in our society. 
The legal profession is not exempt from this, whatever some might like to think.  It is because this has been a painful and damaging time for individuals, families, communities and businesses, that we must each examine what we need to do to dismantle inequality and build a more equitable future.
Traditionally firms have subscribed to equality and diversity schemes when the “business case” for them can be made out, suggesting that there must be an economic benefit for such strategies to be put in place or given proper attention. 
Firms are commercial enterprises and so are driven by financial considerations, but what of the ethical imperative to tackle discrimination, prejudice and bias? 
For the solicitor profession, recent changes in the regulatory regime arguably place greater emphasis on encouraging equality, diversity and inclusion, but what should that look like in practice and what steps can firms and individuals alike take to ensure the focus on the “business case” softens in favour of doing business ethically?

The legislative and regulatory framework

For the past decade, individuals’ rights have been protected by the Equality Act 2010.  Firms and individuals working for them must not discriminate against others because of one or more of their protected characteristics (age; disability; gender reassignment; marriage and civil partnership; pregnancy and maternity; race; religion or belief; sex; and, sexual orientation). 
Whilst legislation provides for the minimum standards that must be adhered to, the regulatory requirements go further.
The regulatory objectives set down by the Legal Services Act 2007, includes the objective “to encourage an independent, strong, diverse and effective legal profession”.  The Act also makes provision for the overarching regulator, the Legal Services Board (LSB), to give guidance “for the purpose of meeting the regulatory objectives”.  In 2011 the LSB did that, issuing guidance to regulators about diversity data collection across the legal workforce.  
Whilst progress has been made over the past decade, the evidence shows more is needed.  Collating and reporting diversity data is a decent first step, but the exercise is all but meaningless where the data isn’t adequately analysed and appropriate action taken. That requires engagement across the profession, whether from the regulator, representative body, firms and individuals.

Engagement by legal service providers

For firms and individuals regulated by the Solicitors Regulation Authority (SRA), the Standards and Regulations (StaRs) introduced a revised Principle from 25 November 2019, requiring them to act “in a way that encourages equality, diversity and inclusion” (Principle 6). 
Under the 2011 Code, Principle 9 required firms and individuals to “run your business or carry out your role in the business in a way that encourages equality of opportunity and respect for diversity”.  
Arguably then, new Principle 6 is wider in ambit and given greater prominence than the equivalent Principle under the previous code.  Paragraph 1.1 of both Codes of Conduct 2019 adds that neither firms nor individuals can “unfairly discriminate by allowing your personal views to affect your professional relationships and the way in which you provide your services”.
The SRA has also published guidance to help firms and individuals understand and comply with their obligations.  The guidance advises that Principle 6 may not be the only Principle engaged in relation to equality, diversity and inclusion (EDI), adding:
“You are responsible for upholding the reputation of the profession in your professional and personal life and for treating people fairly and with dignity and respect. You are responsible for making sure your personal views are not imposed on and do not have a negative impact on others. This includes expressing extreme personal, moral or political opinions on social media platforms.”
This illustrates the reach of regulation and the importance of having ethically sound behaviour.
Individuals need to be sufficiently self-aware to anticipate and understand the impact of their views and actions on others and ensure they are consistent with the wider public interest.  
With inequality continuing to characterise the legal profession, system and wider world, passive compliance isn’t enough and positive action is needed. 
Individuals may look to their firms and leaders to provide guidance, but they must acknowledge they too are accountable and be part of the change that is needed.  Engaging an ethical mindset will help individuals to moderate their behaviour and that of others and engender the change that is needed.


A coordinated approach

As well as pointing up the Equality Act 2010 and reminding firms that they must make reasonable adjustments for clients and staff, the SRA guidance indicates that it is good practice “to put in place appropriate policies and procedures relating to equality, diversity and inclusion which are proportionate to the size of your firm”.  The guidance suggests this includes:
  • Drafting and implementing an EDI policy that outlines “your approach to recruitment, retention and progression” and explains “your approach to encourage equality of opportunity and respect for diversity”.
  • Having policies in place for recruitment and promotions, “to maximise the chances of getting and retaining the best people for each role. Recruiting a diverse workforce increases employee wellbeing, reduces recruitment costs and increases productivity” and results in a better understanding of “the needs of diverse clients”.
  • Producing a “simple but comprehensive policy statement about EDI for your workforce, clients and the people you deal with”.
  • Monitoring and analysing the diversity of staff and clients, which can help understand their needs and highlight areas for improvement and demonstrate commitment to EDI.
  • Senior leadership having responsibility for encouraging EDI, which builds trust, engagement and loyalty and extends to identifying and removing barriers.

Process in practice

Policies, processes and statements are not static and must been reviewed and updated to reflect changes and developments. 
As proponents of justice, everyone involved in the profession must actively challenge themselves and others to address inequality.  Bringing about an equitable reality was always going to require upsetting the status quo. 
At a time of upheaval and adaptation, such as we have seen in recent months, it is a prime time to re-evaluate and set revised plans in motion.  The job of analysing, strategising, having difficult conversations, proposing solutions and taking action is what the business of law is all about, so the profession can have no fear that it doesn’t have the skills for the job.
On the topic of skills for the job, firms and, specifically, the individuals that form them, decide who to hire and promote, how to interact with and manage staff. 
The dynamics of these decisions must be objectively scrutinised and any assumptions that drive them must be laid bare because, collectively, these decisions create the culture of that practice and, in turn, the wider practice of law.  The attributes required for each role must be clear and decision-makers must be able to show they have assessed against the criteria fairly and that they have not made value judgements that do not correlate to the reality of the job.  
The rationale behind recruitment decisions; appraisals; work allocation; requests for reasonable adjustments including flexible working; pay; and promotion must be transparent and free from bias.  Firms will also need to implement checks that ensure these processes are applied consistently.
Measuring and monitoring diversity is not a box-ticking exercise but needs to be conducted with sufficient sophistication to enable meaningful data to be captured and the need for change to be identified and acted on. 
Ensuring that will enable those responsible for decision-making to ask themselves the right questions, challenging their own thinking and biases, conscious or otherwise. Where targets and commitments are set, these should be articulated, reported on and renewed or revised to measure progress, embed culture and drive change.  This might involve including EDI objectives and goals into appraisal and reward systems.  
Where firms need further guidance to support equality, diversity and inclusion strategies, help can be sought from external organisations and groups. 
Putting senior leaders at the centre of strategy helps to weave the ethics and economics together by focusing attention and demanding accountability, but a concerted effort is needed to make a fairer future possible. 
Each of us needs to engage with the need for change and then commit to building a more equitable future for us all.

A version of this article was first published in the August 2020 edition of the Solicitor’s Journal (Volume 163 No.7)