1.1 Who should read this practice note?
All solicitors, their employees, and consultants.
1.2 What is the issue?
The Solicitors Regulation Authority (SRA) implemented outcomes-focused regulation (OFR) in October 2011. OFR is a move away from a rules-based approach to one that focuses on high-level outcomes governing practice and the quality of outcomes for clients.
The SRA published a Handbook, including the Code of Conduct 2011 (SRA Code), and this replaced the Solicitors' Code of Conduct 2007. The SRA Code establishes outcomes-focused conduct requirements and each chapter outlines outcomes and indicative behaviours (IBs). An overview of OFR can be found on the Law Society website.
This practice note sets out the equality and diversity requirements in the SRA Handbook. It includes examples of behaviours which may enable adherence to the outcomes, as well as examples of behaviours which would not. It also sets out how the Law Society can assist you and your practice in this area.
2 Equality Act 2010
The Equality Act 2010 (the act) provides a legislative framework to protect the rights of individuals and advance equality of opportunity for all.
Solicitors have duties as service providers and employers under the act.
Non-statutory guidance has been produced and this is intended to assist employers and service providers in understanding and complying with the act.
It is important to note that the following SRA requirements are in addition to, and not in substitution for, your obligations to comply with the act.
3 SRA Handbook
3.1 The principles
There are ten mandatory principles which apply to all those the SRA regulates and to all aspects of practice. The principles can be found in the SRA Handbook.
When thinking about how to meet the outcomes in Chapter 2 on equality and diversity in the SRA Code, you must consider the principles. You should always bear in mind what the ten principles are and use them as your starting point when implementing the outcomes.
Principle 9 is specifically focused on equality and diversity:
Principle 9 - You must run your business or carry out your role in the business in a way that encourages equality of opportunity and respect for diversity.
3.2 SRA Code
Chapter 2 of the SRA Code, on equality and diversity, is about encouraging equality of opportunity and respect for diversity, and preventing unlawful discrimination, in your relationship with your clients and others.
The requirements apply in relation to age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation.
Chapter 2 sets out mandatory outcomes and non-mandatory IBs. You and your practice must meet the outcomes. IBs are examples of how you might meet the outcomes but are not an exhaustive list and there may be other ways of achieving the same outcome.
4 Meeting the regulatory requirements
When thinking about the best way to meet the outcomes in chapter 2, you should bear in mind the type of organisation you work in, the size and complexity of your practice, and the type of work you undertake. Not everything suggested will be relevant to you or your practice.
Set out below are the mandatory outcomes and some of the steps you should, or may, consider taking in order to meet them. It is important to note that this does not incorporate your obligations with regards to the Equality Act 2010 (see section 2 above).
4.1 Outcome (2.1) - you do not discriminate unlawfully, or victimise or harass anyone, in the course of your professional dealings
You should consider IB (2.1) that suggests having a written equality and diversity policy. You may also find it helpful to develop an action plan, to enable you to plan your activity aimed at enhancing diversity, and also to provide a way in which you will be able to monitor the progress you are making in this area. Any policy and/or action plan should be appropriate to the size and nature of your practice.
IB (2.1) includes the sorts of features you may wish to consider in your policy and/or action plan. For example, this could include details on recruitment, selection, progression, retention and pay.
You should note IB (2.1) (g), 'details of the firm's arrangements for workforce diversity monitoring', and must routinely encourage the submission of equality and diversity data per the SRA equality and diversity monitoring requirements. See our practice note on the SRA's equality and diversity monitoring requirements.
Treating someone less favourably due to a protected characteristic is unlawful. Examples of unlawful discrimination can include:
1.differing rates of pay for men and women doing work of equal value
2. taking action against a solicitor in a practice for raising a complaint or supporting/giving evidence in support of a complaint
3. applying criteria within your recruitment processes which cannot be justified and/or treating applicants less favourably because of a protected characteristic such as disability, race, gender, age, sex, sexual orientation and/or religion and belief
4. giving instructions to discriminate to recruitment companies working on your behalf.
Note: This is not an exhaustive list.
4.2 Outcome (2.2) - you provide services to clients in a way that respects diversity
Your practice must provide an appropriate level of service to all clients. You should consider expressing a clear commitment to equality and diversity. This applies to practices of all sizes.
Your practice should ensure that its website is WCAG2.0 compliant.
More information on web content accessibility guidelines.
You must ensure that your practice meets its legal obligations regarding minimum accessibility standards (Section 20 (6) in Equality Act 2010 - see section 2 above for information on the act).
Your practice may also wish to consider:
- having plans to promote access to its services to diverse groups, taking account of language, cultural background, religion and disability
- identifying ways in which it can participate in equality and diversity work in the wider local community
- demonstrating its commitment to equality and diversity to prospective clients.
A legal service provider is engaged in a family law matter on behalf of a Muslim female. A client requests a female solicitor as a result of her religious beliefs – in relation to being in the presence of another man without her husband or an appropriate male member of the family present. The practice is considering whether to turn down the client's request and insist that she continues with the male solicitor who has been assigned to deal with the case. The practice is concerned, however, whether in complying with the request this runs the risk of it being perceived to be discriminating against male solicitors on grounds of gender.
In a situation such as this the legal services provider should attempt to comply with the request as far as is practicably possible. To turn down the request without a legitimate, reasonable and proportionate reason for doing so may not meet outcome (2.2) 'to provide services to clients in a way that respects diversity.'
Some legitimate reasons for turning down the request might include:
1. The practice only has male lawyers in its family law practice, so it is not possible to assign a female lawyer.
2. It is impractical, due to the workloads of the solicitors in the practice, to assign the case to a female lawyer in the practice.
The practice could make alternative arrangements by having a female legal executive, paralegal or another female member in the practice to attend meetings with the client and this may eliminate the issues in relation to religious observance.
A client with learning difficulties has been to see a solicitor on a family law matter. Although the solicitor has been providing advice to both the client and her carer when conducting client meetings, it is the client herself who will need to make the final decision on how she would like to proceed.
The solicitor provides a written opinion to the carer. The client is unable to understand the legal language and asks the solicitor to provide the document in easy-read format.
As a reasonable adjustment the solicitor should provide the opinion in a format suitable to the client. By providing the advice in an alternative format, the solicitor is respecting the client's right to access information in a format that she can understand and which will then enable her to make a decision. In adopting this approach, a solicitor would meet the requirements set out in outcome (2.2).
4.3 Outcome (2.3) - you make reasonable adjustments to ensure that disabled clients, employees or managers are not placed at a substantial disadvantage compared to those who are not disabled, and you do not pass on the costs of these adjustments to these disabled clients, employees or managers
Your practice must be aware of its obligations to ensure reasonable adjustments are made for disabled clients, employees or managers. The duty to make reasonable adjustments applies to the provision of services in the same way as it is applicable in an employment setting.
There is no set formula that can be used to decide if an adjustment is reasonable. In the majority of cases, the provider of the services will be expected to make every effort to accommodate the need for a reasonable adjustment.
When you consider reasonable adjustments, you must give careful thought as to whether the disabled client will be at a 'substantial disadvantage', which is defined as 'more than minor or trivial' in the Equality Act 2010 S.212(1) if the adjustment is not made.
In some situations it may be useful to get advice from expert disability organisations who can assist with guidance, signposting and other forms of support.
The following organisations may be useful:
4.3.1 How does the Act define the duty to make reasonable adjustments?
The duty comprises the following three requirements to take such steps as it is reasonable to have to take:
- to avoid a disadvantage where a provision, criterion or practice you otherwise adopt puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled.
- to avoid the disadvantage, where a physical feature puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled
- to provide the auxiliary aid where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled
Here are some points to consider when thinking about whether an adjustment is 'reasonable' or not:
- The cost of the adjustment in relation to the overall value of the service (the cost of the adjustment would need to be significant to justify not making the adjustment on cost grounds alone).
- The extent of any disruption or loss of service as a result.
- Whether it is possible to deliver the service in another way without any reduction in the quality of client care offered.
- The size, resources and ability of the practice to manage the reasonable adjustment.
If you have any doubts with regards to making a reasonable adjustment for a disabled client you should consider the matter and if in doubt seek legal advice before rejecting any such request.
4.3.2 Reasonable adjustments for employees
Making adjustments for an employee need not be expensive or lead to a drop in performance or productivity. The ability to think creatively in coming up with solutions is key to making successful adjustments and to understand, in some cases, that the use of expert external organisations may be necessary to ensure the required adjustments can be properly scoped and considered.
If a criterion, provision or practice of your workplace is placing a disabled employee at a substantial disadvantage you have a duty to make a reasonable adjustment.
You should note that the spirit of the legislation is to enable disabled people to retain employment and as an employer you should explore and consider all reasonable and suggested practical solutions when considering adjustments, including taking advice from external expert disability organisations such as those mentioned above.
Examples of reasonable adjustments include:
- altering working patterns (flexible working)
- remote working
- auxillary aids (eg speech recognition software, screen readers etc. Also consider available support such as Access to Work, a government-funded programme which may be able to assist with cost of assistive technology)
- phased returns to work following periods of absence if disability related
- discounting disability related leave from general sick leave
This is not an exhaustive list.
More information on your duty to make reasonable adjustments for employees
This is an example of making a reasonable adjustment for an employee:
David, a solicitor in the immigration team of a small law firm, has had a recent motorbike accident. David's injuries resulted in him losing a majority of his eyesight and although he can make out general shapes and words, letters have to be very large for him to be able to read documents effectively. His doctors do not expect this aspect of his injuries to improve over time.
David has to read large documents in his role as an immigration solicitor and was worried that his injuries might mean losing his job. David consulted his employer who explored ways in which they could make reasonable adjustments for David.
The firm's HR lead and an external provider were able to source and provide David with screen magnification software and audio software. The firm approached Access to Work who were able to fund 30 per cent of the software costs and also provided training for David to enable him to make a phased return to work incorporating time to train him on the new software .
This is an example of making a reasonable adjustment for an employee with a mental health issue:
Sonia is a solicitor working in a large firm doing commercial litigation work. In the last 12 months Sonia has recently experienced a number of personal tragedies, including the loss of her parents and the loss of a child. Although Sonia is maintaining her productivity and output at work, she is struggling with the emotional effects of her recent losses.
After a short period of leave, Sonia returned to work but discussed with her line manager the need to be able to undertake regular counselling appointments as these help her to keep focused. She has been managing mild depression and anxiety for the last few months and wants to maintain her levels of productivity.
Sonia agreed with her line manager to work a half-day on Thursday's 09:00-13:00 to incorporate a regular counselling session and to make up the additional hours during the rest of the week. She does this by working one hour extra every Monday, Tuesday, Wednesday and Friday. By agreeing to a flexible working arrangement, the firm has enabled Sonia to remain at her most productive while being sensitive to the current emotional strain she is managing.
4.3.3 Reasonable adjustments for service providers
As a service provider you must ensure that a disabled client is not put at a substantial disadvantage compared to a non-disabled service user. As mentioned above, this is defined in the Equality Act 2010 s.212 (1) as 'more than minor or trivial'.
In addition to this, chapter 2, outcome 2.3 of the SRA Code requires you to make adjustments for disabled clients and not pass the costs of the adjustment on to the client.
When considering making a reasonable adjustment for a client, ask yourself the following questions to assist you in considering the request properly:
- What will the cost of making the adjustment be?
- Will the cost be prohibitive? (This will depend on the size, and financial resources of your practice and can vary from request to request. Deciding not to make an adjustment on the basis of cost alone will rely on being able to demonstrate that the disruption or impact on the firm would be severe)
- Have you accessed external advice on making adjustments? (eg Access to Work, disability charities, specialist organisations etc)
- Are there other ways of delivering the service which would suit the client and practice while avoiding issues of access and/or accessibility? (eg mini-com services, instant messenger services, Skype, etc)
- Have you discussed the available options with the client to understand how you might be able to meet their needs?
- Will the client face a substantial disadvantage (which is more than minor or trivial) when accessing the service in comparison to a non-disabled client?
- Will the adjustment result in the client receiving a level of service you would expect to give to other clients?
An example of reasonable adjustments for service providers:
- Having an accessible website which can be used by people using assistive technology
- Altering the location of client meetings where a venue is not accessible
- Providing and utilising alternative methods for communicating with the client eg instant messaging services, skype, teleconferencing, etc
- Providing advice in alternative formats upon request e.g. audio versions, large print and/or Braille versions
- Providing auxiliary aids such as hearing loops and making sure the auxiliary devices are turned on and fully functioning
This is not an exhaustive list.
Please note: Having a policy which applies additional charges to all clients for out-of-office appointments may indirectly discriminate against disabled clients in some circumstances.
The attendance at an out-of-office meeting with a disabled client is a reasonable adjustment if the reason the client cannot go to the solicitors' office arises out of their disability. Once this is established (the disability) it becomes a matter of regulation (SRA outcome 2.3 requires no additional charge be made for a reasonable adjustment) and the law as service providers requires providers to ensure disabled service users are not placed at a substantial disadvantage.
This is subject to the definition of 'reasonable' which is not defined in the EA 2010 and is open to interpretation. The interpretation of 'reasonable' will vary on a case-by-case basis.
Distance and cost can be factors in establishing whether a request for an adjustment is 'reasonable', however, a number of factors would have to be significant to be considered appropriate justification for refusing the request.
The justification required will vary with the size of firm, type of work being undertaken, resources available to the solicitor and the type of disability, as this will have an impact on the kinds of adjustments which may be required.
Issues around out-of-office appointments and/or travelling long distances without the client incurring additional charges can be mitigated with the use of technology such as Skype (which is free for both solicitor and client.)
Agreeing alternative methods for delivering the service to the client such as relying on suitable technology should be discussed with the client to ensure disruption is minimised for the solicitor and to ensure that the client does not receive less favourable treatment which arises from their disability.
More information on your duty to make reasonable adjustments as a service provider
Remember: It is vital that disabled clients receive a level of service which is not less favourable than non-disabled clients.
A solicitor is preparing a will for a client and is doing so at a fee of £150. The client has a visual impairment and requests that a copy of her will be provided in an alternative format. The solicitor discusses the required format with the client and they agree an audio version will be acceptable. The solicitor produces the written version of the will and asks her secretary to dictate the will onto an MP3 player in order to make a cost effective audio version of the will. The solicitor then emails the audio file to the client.
The solicitor does not charge the client for the dictation of the file onto the MP3 player or any additional disbursement of the audio file as an alternative version.
This would meet outcome (2.3).
A client who is hard of hearing would like to ask for representation in an employment related matter and goes to see their local solicitor, who realises an interpreter may be needed. The solicitor asks the client whether a friend or family member can attend with them and interpret on their behalf. The client is worried about this, as they do not want to discuss personal issues with someone who they are close to. The client asks if the solicitor can pay for an interpreter. The solicitor is not sure who is responsible for finding and paying for sign language interpreter services when clients are not eligible for legal aid.
In a situation such as this the legal services provider should attempt to comply with the client's request as far as is practicably possible. There may be a possibility that the client and solicitor share the cost of an interpreter. The solicitor might also consider getting advice in this situation from an expert organisation such as Action on Hearing Loss in this context.
4.4 Outcome (2.4) - your approach to recruitment and employment encourages equality of opportunity and respect for diversity
As is noted above, your practice should consider having an equality and diversity policy and may wish to include information on its approach to recruitment and employment (depending on the size and nature of your practice).
Your practice should consider assessing the equality and diversity training needs of all staff, and provide employees and managers with training and information about complying with equality and diversity requirements (IB (2.2)).
Your practice may also wish to consider:
- the partners, or senior level equivalent in the practice playing an active role in encouraging equality of opportunity and respect for diversity
- including activities, to support equality, diversity and inclusion, in staff performance reviews
- involving staff in the development of equality and diversity policies
- analysing the diversity composition of its workforce in comparison to relevant baseline data, to identify any under representation in the workforce.
A practice interviews a female and male trainee for an associate post. During the interview it comes to light that the female trainee is two months pregnant and will be requiring time off for maternity leave following the birth of her child.
Despite the female trainee performing better at the interview, and in the relevant assessments, the position is awarded to the male. The recruiting partner feels the male displays more commitment to the practice as he will not be requiring maternity leave and therefore chooses him for the associate post.
This would be direct sex discrimination and is unlawful.
A practice interviews two trainees for an associate post. One candidate is Muslim and the other White British. During the interview it becomes clear that the two candidates have very similar competencies and qualities, although the Muslim applicant scored marginally better in one of the assessment exercises and therefore has a slightly higher overall score.
During the final discussions on awarding the training contract, one of the recruiting partners suggests that they pick the candidate who will best 'fit' the firm, including dealing with clients and participating in the type of social activities that clients might expect.
He mentioned the possibility that the Muslim candidate may not be able to participate as others would in business development activities such as entertaining clients, taking clients for drinks and engaging in weekend activities with important clients. He felt that 'fitting in' was just as important as the recruitment exercises and therefore suggested that the White British candidate is offered the training contract. Although there was debate among the recruitment panel, the decision of the recruiting partner stood and the training contract was offered to the White British candidate.
This would be direct discrimination on the grounds of religion/belief and/or possibly race and would be unlawful.
An employee emails her colleague about a project she is involved in, and includes in that email a discriminatory remark about another colleague. There is an exchange of emails between the two colleagues interspersed with casual discriminatory comments. The emails come to light and the colleague against whom the remarks are made becomes angry and upset. The exchange is defended in that they were not meant to be seen by the colleague in question.
Practices should ensure that their policy on equality and diversity, or bullying and harassment, includes reference to sending inappropriate emails, whether or not directed to individuals concerned. Failure to take disciplinary action against the perpetrators could well amount to discrimination by the employer.
4.5 Outcome (2.5) - complaints of discrimination are dealt with promptly, fairly, openly, and effectively
Again, as above, your practice should consider having an equality and diversity policy and think about including information on details of how complaints and disciplinary issues will be dealt with.
Within the policy, you may also think about including information on supporting structures around bullying and harassment, grievance and disciplinary matters.
John is a gay solicitor working in a commercial practice on mergers and acquisitions and his sexuality is regularly referred to by co-workers and one of the junior partners as they think it's funny. John finds the continued use of the banter offensive and asks his colleagues not to do it any more. Despite this, his colleagues continue to make jokes about him being gay. John complains to HR and his complaint is upheld.
After making his compliant, John notices the junior partner is no longer selecting him for challenging work and he is often isolated and made to do more menial tasks than he had been doing previous to his complaint. The practice does not have a written process for dealing with discrimination issues and John receives no further support from HR in dealing with the situation.
This is victimisation and is unlawful. The practice used in the example would not meet the requirements of outcome (2.5).
A client complains that she has been discriminated against by the solicitor conducting her conveyancing transaction. She has accused the solicitor of sexual harassment and inappropriate advances.
The practice does not have a process for dealing with complaints of discrimination and does not respond to the client about her complaint of discrimination. It is likely that this would not meet the requirement of outcome (2.5).
5 How the Law Society can assist your practice to comply
5.1 The Law Society Diversity and Inclusion Charter
The Law Society Diversity and Inclusion Charter is the flagship diversity initiative of the legal profession.
The charter is a public commitment by providers of legal services, regardless of practice size, to develop and implement best practice in equality, diversity and inclusion - as employers, as providers of legal services, as purchasers of goods and services and in their wider roles in society.
The charter lists activities to assist practices in meeting the outcomes in chapter 2 of the SRA Code, and are presented against the following eight categories:
- Leadership and vision
- Employment and staff development
- Provision of legal services
- Engagement with staff, clients and community
- Policy making and development
- Monitoring and review
- Procurement and supplier diversity
- Sharing good practice
Membership of the Diversity and Inclusion Charter is voluntary. Signatory practices sign up to a set of commitments and charter membership also includes a number of best practice toolkits, events, workshops, webinars and fora to enable members to develop robust equality and diversity practices.
More information on the Law Society Diversity and Inclusion Charter and toolkit can be found here:
5.2 Equality and diversity support
Support for practices that recognise the business imperative to become diverse and accessible.
5.3 Practice Advice Service
The Law Society provides support for solicitors on a wide range of areas of practice. Practice Advice can be contacted on 020 7320 5675 from 09:00 to 17:00 on weekdays or email firstname.lastname@example.org.
5.4 Law Society Consulting
If you require further support, Law Society Consulting can help. We offer expert and confidential support and guidance, including face-to-face consultancy on risk and compliance. Please contact us on 020 7316 5655, or email email@example.com.
Find out more about our consultancy services
Solicitors Regulation Authority's Professional Ethics Helpline for advice on conduct issues.