Committing to change

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

From the death of George Floyd in the US – which prompted 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, there is exigent evidence of continuing inequality in society. 

The legal profession is not exempt from this. Because this has been a painful and damaging time for individuals, families, communities and businesses, we must each examine what we must do to dismantle inequality and build a more equitable future.

Firms have traditionally subscribed to equality and diversity schemes when the business case for them can be made out, suggesting there must be an economic benefit for such strategies to be implemented or given proper attention. 

Firms are commercial enterprises and driven by financial considerations, but what of the ethical imperative to tackle discrimination, prejudice and bias? 

For the solicitors’ 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 take to ensure the focus on the business case softens in favour of doing business ethically?

Frameworks

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 protected characteristics, such as their age, disability, race or sex. Legislation provides minimum standards that must be adhered to, but the regulatory requirements go further.

The regulatory objectives set down by the Legal Services Act 2007 include “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 this, issuing guidance to regulators about diversity data collection across the workforce. 

Engagement 

Though 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 meaningless where the data isn’t adequately analysed and appropriate action taken. That requires engagement across the profession, whether from the regulator, representative body or firms and individuals.

The Solicitors Regulation Authority (SRA) Standards and Regulations (STARs) introduced a revised principle requiring regulated firms and individuals 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, the new Principle 6 is wider in ambit and given greater prominence than the earlier Principle 9. Paragraph 1.1 of the 2019 codes of conduct 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. It 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. 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 are also accountable and must be part of the change that’s needed. Engaging an ethical mindset will help individuals moderate their behaviour and that of others; and engender change.

A coordinated approach

The SRA guidance also 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”. 

It suggests this includes: Drafting and implementing an EDI policy outlining your approach to recruitment, retention and progression; and explaining 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. It says “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 be reviewed and updated to reflect changes and developments. 

As proponents of justice, all those 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 this, it’s 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.

The dynamics of the decisions as to who to hire and promote, and how to interact with and manage staff, must be objectively scrutinised. 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 have made no value judgements that don’t 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 (conscious or otherwise). Firms will also need to implement checks to ensure these processes are consistently applied.

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. 

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. 

Firms needing further guidance to support equality, diversity and inclusion strategies can seek help from external organisations and groups. 

Putting senior leaders at the centre of strategy helps 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 must engage with the need for change – and then commit to building a more equitable future for all.  

Emma Walker is an associate in the regulatory and disciplinary team at Leigh Day leighday.co.uk