Case of the week: Employment

30 March 2012

The Bar Council’s rule requiring barristers’ chambers to fund pupillages was not a provision, criterion or practice imposed on applicants for pupillages, but a requirement imposed on chambers. The rule could not, therefore, indirectly discriminate on grounds of race contrary to the Race Relations Act 1976 s.12.

Appeal dismissed

Iteshi appealed against an Employment Tribunal (ET) decision that he had not been indirectly discriminated against on grounds of race by a rule introduced by the respondent Bar Council requiring all pupillages to be funded.

Iteshi was a Nigerian national of black African ethnicity. He gained a degree before coming to the UK and had trained as a lawyer. He applied to barristers’ chambers for pupillages from 2006, but without success.

In 2003 the Bar Council, exercising its regulatory functions through its Bar Standards Board, had introduced a rule that chambers had to fund pupillages, although chambers could apply for waivers. Iteshi considered that the rule was, contrary to the Race Relations Act 1976 s.12, indirectly discriminatory and had resulted in his failure to obtain a pupillage.

The ET found that the rule was not a provision, criterion or practice imposed on Iteshi, but a requirement imposed on chambers, meaning that s.12 did not apply. Iteshi asserted that he was disadvantaged specifically as a black African; however, the tribunal found that, had the rule been a provision to which s.12 could apply, on the evidence no particular disadvantage to black Africans had been shown. The tribunal held that it had not been shown that the provision had caused disadvantage to Iteshi, as it could not say that there was a realistic prospect that he would ever obtain a pupillage whether or not it was unfunded.

Iteshi argued that the ET had looked only at the functions performed by the board, yet he had been challenging the Bar Council’s decision to limit the opportunities for unfunded pupillages; the Bar Council’s statistics had shown a substantial decline in the number of black Africans obtaining pupillages; and the tribunal had found that it could not say whether Iteshi would ever obtain a pupillage whether unfunded or not, and had failed to take account of evidence that some applicants with 2:2 degrees had obtained pupillages.

Appeal dismissed

Iteshi’s first ground was wholly misconceived. The system imposed by the Bar Council, via the board, imposed clear requirements on barristers’ chambers, but made no requirements of those applying for pupillages. Nor did it impose any terms or requirements on those who, having completed pupillage, applied to the Bar Council for a practising certificate. The circumstances relied on by Iteshi were plainly not covered by s.12.

The second ground was misconceived. It proceeded on a misrepresentation of the tribunal’s findings. The tribunal had clearly explained that it could not, on the evidence, conclude that there had been a substantial and relevant decline in the number of black Africans obtaining pupillages.

The third ground proceeded on an unwarranted gloss on the tribunal’s findings. The tribunal had reached the clear conclusion that there was no realistic prospect of Iteshi obtaining a pupillage on a funded or unfunded basis. It had made no specific finding regarding Iteshi’s degree level; that did not appear to have featured as an issue before it and, in any event, the statistics relied on by Iteshi on appeal offered no before and after comparison, as they began at a date after the introduction of the system.

For the claimant Iteshi
Gary Morton, 3 Pump Court Chambers

Alison Padfield, Devereux Chambers
Richard Wilkins, partner, Berrymans Lace Mawer

Commentary

Richard Wilkins

Some in practice can remember the days when aspiring barristers paid their masters for the privilege of being their pupils.

Unsurprisingly, it was thought the lack of funding in these years did little to open the profession to those from non-monied backgrounds. Iteshi’s claim is, therefore, somewhat ironic.

At first instance, the tribunal noted that “when the Regulations were passed the Race Relations Committee of the Bar Council supported this move as in the interests of… minority ethnic members of the bar.” The move was also sanctioned by the Office

of Fair Trading, which, though noting the commercial restraint placed on chambers by the imposition of minimum funding, believed it to be justified in order to advance the purpose of greater equality of opportunity. 

Still, it is possible to envisage circumstances where such a regime might be detrimental. That is why it was important for the Bar Council to defeat the claim on its substantive merits, as well as on the narrower technical issue of whether s.12 applied where the provision, criterion or practice applied not to the claimant but to

a third party. As a regulator, the Bar Council had taken the greatest care in consulting on the new regime as widely as possible and had had regard to potential unintended consequences.

As is not uncommon with those who make such allegations, Iteshi’s claim was based on a series of theories and suppositions. The tribunal has reminded us that an allegation of discrimination requires more than this, even given the relaxation of the evidential burden for claimants.

Richard Wilkins, partner, Berrymans Lace Mawer