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    In a world where the Equality Bill becomes law (cf. s.158 of the draft bill: http://www.publications.parliament.u...20/2010020.pdf)

    "Dear Sarah,

    Thank you for your interest in a training contract with [X] and for taking the time to attend our assessment centre.

    As you know, each year we attract a high number of very able applicants. Whilst our interview team were impressed with your application, we are afraid we have determined that a handful of other, male, candidates are equally qualified for our small number of remaining training contract positions.

    Since a disproportionate number of trainee solicitors are female (industry wide approximately 60% over the past two years and, in our firm, 75% of the current cohort), we have decided to extend training contract offers to the suitably qualified male applicants in order to bolster participation in the activity of training as a solicitor by those who share the protected characteristic of the male gender.

    We wish you every personal and professional success in the future. Thank you for your interest in our firm.

    Regards,

    [Y]"
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    Who needs the blinking bill. Last year the intake of BME pupils was up to 65% BME - in a population which is 8% BME that hasnt happened naturally.

    Ethnicity %
    White-British 607 33.0%
    White-Irish 31 1.7%
    White Other 51 2.8%
    White & Black Caribbean 40 2.2%
    White & Black African 76 4.1%
    White and Asian 19 1.0%
    White & Other background 23 1.3%
    Asian-Indian 60 3.3%
    Asian-Pakistani 65 3.5%
    Asian-Bangladeshi 50 2.7%
    Asian-Other 38 2.1%
    Black-African 24 1.3%
    Black-Caribbean 128 7.0%
    Black-Other 12 0.7%
    Chinese 241 13.1%
    Other 35 1.9%
    Unknown (not disclosed) 337 18.3%
    Total 1837 100%

    Special Needs %
    With Special Needs 80 4.4%
    Without Special Needs 1556 84.7%
    Unknown (not disclosed) 201 10.9%
    Total 1837 100%


    Source http://www.barcouncil.org.uk/CareersHome/TheStatistics/
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    (Original post by FMQ)
    Who needs the blinking bill. Last year the intake of BME pupils was up to 65% BME - in a population which is 8% BME that hasnt happened naturally.

    Ethnicity %
    White-British 607 33.0%
    White-Irish 31 1.7%
    White Other 51 2.8%
    White & Black Caribbean 40 2.2%
    White & Black African 76 4.1%
    White and Asian 19 1.0%
    White & Other background 23 1.3%
    Asian-Indian 60 3.3%
    Asian-Pakistani 65 3.5%
    Asian-Bangladeshi 50 2.7%
    Asian-Other 38 2.1%
    Black-African 24 1.3%
    Black-Caribbean 128 7.0%
    Black-Other 12 0.7%
    Chinese 241 13.1%
    Other 35 1.9%
    Unknown (not disclosed) 337 18.3%
    Total 1837 100%

    Special Needs %
    With Special Needs 80 4.4%
    Without Special Needs 1556 84.7%
    Unknown (not disclosed) 201 10.9%
    Total 1837 100%


    Source http://www.barcouncil.org.uk/CareersHome/TheStatistics/
    Should point out that those stats are for enrolments onto the BVC.

    The statistics for those actually securing pupillage (helpfully contained within the same Bar Council workbook) provide a slightly different narrative, don't they?

    Ethnicity %
    White-British 376 67.0%
    White-Irish 17 3.0%
    White Other 9 1.6%
    White & Black Caribbean 12 2.1%
    White & Black African 2 0.4%
    White and Asian 3 0.5%
    Other Mixed 7 1.2%
    Asian-Indian 19 3.4%
    Asian-Pakistani 7 1.2%
    Asian-Bangladeshi 6 1.1%
    Asian-Other 16 2.9%
    Black-African 6 1.1%
    Black-Caribbean 2 0.4%
    Black-Other 0 0.0%
    Chinese 13 2.3%
    Other 12 2.1%
    Unknown (not disclosed) 54 9.6%
    Total 561 100%


    Disability %
    Pupils with a disability 12 2.1%
    Pupils without disability 498 88.8%
    Unknown (not disclosed) 51 9.1%
    Total 561 100%
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    The problem with statistics is that you can use them to virtually show what you want to show...a bias, a balance or a discrepancy.

    Redressing issues that have been detrimental to certain people in society will always show a large increase in numbers for that redress. It's a natural phenomenon. It doesn't necessarily mean that things have been made easier for those groups, it's that they are being given an equal opportunity which possibly makes more of those groups think "I could do that" and instead of the profession being the apparent sole preserve of white males, it's seen as being open to anyone with the right academics.

    I am fairly certain if one wished to look up information on women being allowed into the profession that similar leaps on statistics would be found. The end result is often that the increases find their level and perhaps return to numbers that are more reflective of society.

    Frankly there should never have been a need for equality laws, the mere idea that some people would think themselves superior by virtue of their hue is utterly ridiculous in this day and age...but the reality is people DID think that, and society not only reflected that attitude over centuries but CONTINUES to reflect that attitude in 2010. So there is a need for equality laws to redress the balance. If that makes some people angry, or upset, then it would just appear that the shoe is on the other foot.

    Equality of opportunity is necessary...how that is achieved should only be based on the basis of all other factors being equal. The best person should get the job.
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    (Original post by SevenStars)
    The problem with statistics is that you can use them to virtually show what you want to show...a bias, a balance or a discrepancy.

    Redressing issues that have been detrimental to certain people in society will always show a large increase in numbers for that redress. It's a natural phenomenon. It doesn't necessarily mean that things have been made easier for those groups, it's that they are being given an equal opportunity which possibly makes more of those groups think "I could do that" and instead of the profession being the apparent sole preserve of white males, it's seen as being open to anyone with the right academics.

    I am fairly certain if one wished to look up information on women being allowed into the profession that similar leaps on statistics would be found. The end result is often that the increases find their level and perhaps return to numbers that are more reflective of society.

    Frankly there should never have been a need for equality laws, the mere idea that some people would think themselves superior by virtue of their hue is utterly ridiculous in this day and age...but the reality is people DID think that, and society not only reflected that attitude over centuries but CONTINUES to reflect that attitude in 2010. So there is a need for equality laws to redress the balance. If that makes some people angry, or upset, then it would just appear that the shoe is on the other foot.

    Equality of opportunity is necessary...how that is achieved should only be based on the basis of all other factors being equal. The best person should get the job.
    There is a world of difference between equality laws ( "employers should not discriminate based on certain defined characteristics" ) and positive action laws ( "employers can discriminate based on certain defined characteristics" ).

    I have absolutely no issue whatsoever with the former.

    However s.158 of the Equality Bill is an example of the latter category. The problem with this section is that, as you indicate, one could easily justify a wide range of discriminatory actions based on a "reasonable belief" in certain statistics.

    Ceteris paribus, if the bill becomes law, making an offer to a man in preference to a woman for a trainee solicitor position or, for that matter as FMQ points out*, making a BVC offer to a person of "White-British" origin in preference to a person of "Black-African" origin would both be perfectly legal on the grounds that the number of men training as solicitors and the number of "White-British" people enrolling on the BVC are each "disproportionately low".

    * although please note that I in no way agree with the sentiment behind FMQ's post
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    Appologies for misquoting the figures - i misread the spread sheet.

    I don't know what you mean "sentiment behind FMQs post" would you care to explain further?

    There should be no discrimination, positive, negative or otherwise. There should not be a law to encourage this (though actual discrimination should of course have a framework of protection). My opinion and experience is that there is already positive discrimination alive and well at the bar. Again I appologise for quoting the wrong figures - but the actual figures do not directly correlate between the populus make up and those winning pupillage. An even bigger gap is the number of BME students awarded inn scholarships.

    I am fed up with those that say I am being discriminated against becuase I am this colour, I am old, I am a woman!! These people don't want equal chances for all. The want THEIR chances to be considerably better. Shoe on other foot? NO THANKS! Both shoes on both feet please.
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    I haven't bothered to read the Bill, but on my understanding your post is wrong. My understanding has to be that applicants have to be equally suitable before any choice kicks in. No positive discrimination is legalised: i.e., if a man is better for the job, you can't choose a woman over him.

    From what I can tell of the version of the Bill you have linked, the Bill seems to do nothing but prohibit discrimination and consolidate existing overly-complicated law into something simple and understandable. I really don't see the problem.

    If you have a problem, specific sections, please.
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    (Original post by jacketpotato)
    I haven't bothered to read the Bill, but on my understanding your post is wrong. My understanding has to be that applicants have to be equally suitable before any choice kicks in. No positive discrimination is legalised: i.e., if a man is better for the job, you can't choose a woman over him.

    From what I can tell of the version of the Bill you have linked, the Bill seems to do nothing but prohibit discrimination and consolidate existing overly-complicated law into something simple and understandable. I really don't see the problem.

    If you have a problem, specific sections, please.
    As already posted twice, section 158: if two candidates are equally qualified to be recruited, it is permissible to recruit one over the other solely on the basis of one possessing a protected characteristic which the recruiter reasonably believes has a disproportionately low representation in the relevant activity.

    The two examples given (men having a disproportionately low representation amongst trainee solicitors (around 40%) and White-British people have a disproportionately low representation amongst those enrolling onto the BVC (around 33%)) are merely facetious illustrations of the unintended consequences that this absurd provision could have..
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    (Original post by FMQ)
    Appologies for misquoting the figures - i misread the spread sheet.

    I don't know what you mean "sentiment behind FMQs post" would you care to explain further?

    There should be no discrimination, positive, negative or otherwise. There should not be a law to encourage this (though actual discrimination should of course have a framework of protection). My opinion and experience is that there is already positive discrimination alive and well at the bar. Again I appologise for quoting the wrong figures - but the actual figures do not directly correlate between the populus make up and those winning pupillage. An even bigger gap is the number of BME students awarded inn scholarships.

    I am fed up with those that say I am being discriminated against becuase I am this colour, I am old, I am a woman!! These people don't want equal chances for all. The want THEIR chances to be considerably better. Shoe on other foot? NO THANKS! Both shoes on both feet please.
    Fair enough, agree that applications should be entirely gender / race / sexual orientation etc. blind - none of these characteristics should make any difference one way or the other.

    Re the specific issue of the bar, I simply have no view on the causal factors behind the current composition of individuals doing the BVC / pupillage since I really don't know enough about the subject. No idea, for example, if the disproportionate number of non White-British is really due to positive action policies by BVC providers or just a disproportionate attraction to an advocacy career amongst people of those ethnic origins. Or a combination or the two. Or in fact something entirely different.
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    (Original post by kalokagathia)
    Fair enough, agree that applications should be entirely gender / race / sexual orientation etc. blind - none of these characteristics should make any difference one way or the other.

    Re the specific issue of the bar, I simply have no view on the causal factors behind the current composition of individuals doing the BVC / pupillage since I really don't know enough about the subject. No idea, for example, if the disproportionate number of non White-British is really due to positive action policies by BVC providers or just a disproportionate attraction to an advocacy career amongst people of those ethnic origins. Or a combination or the two. Or in fact something entirely different.
    Could you explain what "sentements behind FMQs post" means please?
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    (Original post by kalokagathia)
    As already posted twice, section 158: if two candidates are equally qualified to be recruited, it is permissible to recruit one over the other solely on the basis of one possessing a protected characteristic which the recruiter reasonably believes has a disproportionately low representation in the relevant activity.

    The two examples given (men having a disproportionately low representation amongst trainee solicitors (around 40%) and White-British people have a disproportionately low representation amongst those enrolling onto the BVC (around 33%)) are merely facetious illustrations of the unintended consequences that this absurd provision could have..
    That isn't how I read it.

    The only acceptable purpose of the action permitted by s158 (3) is that in s158 (2), which is:

    enabling or encouraging persons who share the protected
    characteristic to—
    (a) overcome or minimise that disadvantage, or
    (b) participate in that activity.

    It would permit things like female career, guaranteed interviews for prospective male primary teachers (this happens at the moment in most local authorities to counter a lack of male primaryt eachers) or programmes to help people from ethnic minorities widen their horizons.

    But enabling someone to overcome or minimise a disadvantage doesn't allow a positive advantage, and does not allow firms to give TCs to women over better qualified men or vice versa.


    This is put totally beyond doubt by s158 (4) which says:

    (4) But subsection (2) applies only if—
    (a) A is as qualified as B to be recruited or promoted, and
    (b) P does not have a policy of treating persons who share the protected
    characteristic more favourably in connection with recruitment or
    promotion than persons who do not share it.
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    (Original post by kalokagathia)
    There is a world of difference between equality laws ( "employers should not discriminate based on certain defined characteristics" ) and positive action laws ( "employers can discriminate based on certain defined characteristics" ).

    I have absolutely no issue whatsoever with the former.
    Equality of opportunity is what I have referred to.

    (Original post by kalokagathia)
    However s.158 of the Equality Bill is an example of the latter category. The problem with this section is that, as you indicate, one could easily justify a wide range of discriminatory actions based on a "reasonable belief" in certain statistics.
    I didn't indicate anything with regards to the bill (not having read it). My view was an overall one of the reasonable expectation of equality of opportunity. However, having made the effort to have a look at the Bill itself, the clause you refer to, is about employers being able to take positive action to redress under representations in their workforce if they are faced with two people of EQUAL suitability. That is how I read it...but of course, how the courts will interpret it once it is in force may be entirely at odds to my understanding. I (like everyone else) shall have to wait and see.

    (Original post by kalokagathia)
    Ceteris paribus, if the bill becomes law, making an offer to a man in preference to a woman for a trainee solicitor position or, for that matter as FMQ points out*, making a BVC offer to a person of "White-British" origin in preference to a person of "Black-African" origin would both be perfectly legal on the grounds that the number of men training as solicitors and the number of "White-British" people enrolling on the BVC are each "disproportionately low".
    The point is that equality of opportunity was missing, for many years, in the legal profession (and everywhere else!). The attempts to redress the situation were patently going to cause discontent, or even malcontent amongst those who felt they were being sidelined in favour of others. The point behind my statement of 'shoe on other foot' is simply that those who were sidelined previously are now being given an equality of opportunity...two candidates, both equal in experience etc + one discriminatory factor meant that previously the candidate without the discriminatory factor was more likely to be given the opportunity...now an employer has the opportunity (should s/he so wish) to choose the other candidate to address any under representation in their workforce. It isn't automatic, it is the employer's choice and to redress under representation.

    (Original post by kalokagathia)
    * although please note that I in no way agree with the sentiment behind FMQ's post
    I'm not sure what anyone's actual sentiment here is, beyond my own of course! The mere fact that equality of opportunity is necessary indicates there was inequality in the first place.
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    (Original post by jacketpotato)
    That isn't how I read it.

    The only acceptable purpose of the action permitted by s158 (3) is that in s158 (2), which is:

    enabling or encouraging persons who share the protected characteristic to—
    (a) overcome or minimise that disadvantage, or
    (b) participate in that activity.

    It would permit things like female career, guaranteed interviews for prospective male primary teachers (this happens at the moment in most local authorities to counter a lack of male primary teachers) or programmes to help people from ethnic minorities widen their horizons.

    But enabling someone to overcome or minimise a disadvantage doesn't allow a positive advantage, and does not allow firms to give TCs to women over better qualified men or vice versa.


    This is put totally beyond doubt by s158 (4) which says:

    (4) But subsection (2) applies only if—
    (a) A is as qualified as B to be recruited or promoted, and
    (b) P does not have a policy of treating persons who share the protected
    characteristic more favourably in connection with recruitment or
    promotion than persons who do not share it.
    Okay, for the shorthand gloss of this provision see the page 18 of the explanatory paper: http://www.equalities.gov.uk/PDF/GEO...%20reality.pdf

    "The Equality Bill will expand the way positive action can be used so that employers can pick someone for a job from an underrepresented group when they have the choice between two or more candidates who are equally suitable, provided they do not have a general policy of doing so in every case."


    Now, let's do it longhand by going step by step through the entire section:

    158 Positive action: recruitment and promotion
    (1) This section applies if a person (P) reasonably thinks that—
    (a) persons who share a protected characteristic suffer a disadvantage connected to the characteristic, or
    (b) participation in an activity by persons who share a protected characteristic is disproportionately low.


    P, a law firm, thinks that participation in an activity (training to be a solicitor) by persons who share a protected characteristic (being of the male gender) is disproportionately low.

    This belief is objectively reasonable since it is supported by statistical evidence (around 40% of trainee solicitors are male as compared to the national proportion of about 49%).


    (2) Part 5 (work) does not prohibit P from taking action within subsection (3) with the aim of enabling or encouraging persons who share the protected characteristic to—
    (a) overcome or minimise that disadvantage, or
    (b) participate in that activity.

    (3) That action is treating a person (A) more favourably in connection with recruitment or promotion than another person (B) because A has the protected characteristic but B does not.


    Subject to subsection (4), P is not prohibited from treating A, a male, more favourably in connection with recruitment onto a training contract than B, a female, so long as it is done with the aim of enabling or encouraging men to be trainee solicitors...

    (4) But subsection (2) applies only if—
    (a) A is as qualified as B to be recruited or promoted, and
    (b) P does not have a policy of treating persons who share the protected characteristic more favourably in connection with recruitment or promotion than persons who do not share it.


    …and so long as:

    (a) A and B are at least equally well qualified, and

    (b) P does not have a general policy of recruiting men in preference to women but rather, faced with the specific choice between A and B who are each equally well qualified, has chosen A solely on the grounds that A is male and B is female and that P believes that men are underrepresented amongst trainee solicitors.


    (5) “Recruitment” means a process for deciding whether to—
    (a) offer employment to a person,
    (b) make contract work available to a contract worker,
    (c) offer a person a position as a partner in a firm or proposed firm,
    (d) offer a person a position as a member of an LLP or proposed LLP,
    (e) offer a person a pupillage or tenancy in barristers’ chambers,
    (f) take a person as an advocate’s devil or offer a person membership of an
    advocate’s stable,
    (g) offer a person an appointment to a personal office,
    (h) offer a person an appointment to a public office, recommend a person
    for such an appointment or approve a person’s appointment to a public
    office, or
    (i) offer a person a service for finding employment.


    P is presumably an LLP.

    (6) This section does not enable P to do anything that is prohibited by or under an enactment other than this Act.

    Nothing described above is prohibited by any other part of the draft bill.


    All of this supports the conclusion that my original post - whilst intentionally facetious - is an example of a rejection letter which would very likely be entirely lawful under the proposed new legislation.
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    (Original post by SevenStars)
    Equality of opportunity is what I have referred to.



    I didn't indicate anything with regards to the bill (not having read it). My view was an overall one of the reasonable expectation of equality of opportunity. However, having made the effort to have a look at the Bill itself, the clause you refer to, is about employers being able to take positive action to redress under representations in their workforce if they are faced with two people of EQUAL suitability. That is how I read it...but of course, how the courts will interpret it once it is in force may be entirely at odds to my understanding. I (like everyone else) shall have to wait and see.



    The point is that equality of opportunity was missing, for many years, in the legal profession (and everywhere else!). The attempts to redress the situation were patently going to cause discontent, or even malcontent amongst those who felt they were being sidelined in favour of others. The point behind my statement of 'shoe on other foot' is simply that those who were sidelined previously are now being given an equality of opportunity...two candidates, both equal in experience etc + one discriminatory factor meant that previously the candidate without the discriminatory factor was more likely to be given the opportunity...now an employer has the opportunity (should s/he so wish) to choose the other candidate to address any under representation in their workforce. It isn't automatic, it is the employer's choice and to redress under representation.



    I'm not sure what anyone's actual sentiment here is, beyond my own of course! The mere fact that equality of opportunity is necessary indicates there was inequality in the first place.
    Fair enough - of course entirely agree with the principle of equality of opportunity etc.

    The point of this thread is simply to illustrate the prima facie absurd consequences which this bill could have if it becomes law in its currently draft form.
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    "This belief is objectively reasonable since it is supported by statistical evidence (around 40% of trainee solicitors are male as compared to the national proportion of about 49%)."

    The individual employer (to whom the law relates) would surely only be in a position to address the under representation in his/her OWN firm. Ergo, the overall statistics wouldn't be relevant, it would be the specific statistics relating to that firm...otherwise 4(b) would challenge the legality of the appointment should it be overly in favour of one group or another.
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    (Original post by kalokagathia)
    ...
    A couple of points:

    1) A letter like the example you gave is an example of a firm-wide policy. That is simply not allowed, s158 (4) (b).

    2) I think your analysis of s158 (2) doesn't follow. In the employment context, the relevant part is s158 (2) (a), action is only allowed to "overcome or minimise that disadvantage".
    That is quite limited. It allows action to overcome specific disadvantages, but it doesn't appear to allow positive action. Overcoming a disadvantage in a negative sense is much more limited than a positive advantage.

    3) I think you understate the limits of s158 (4).
    If the section only applies between equally qualified people, and, especially, firms are not allowed to have a policy of preferring men or women, then I find it difficult to think of any circumstances in which meaningful positive discrimination would influence whether or not one gets a job.
    The ban on having a policy to treat "persons who share the protected characteristic more favourably" seems pretty robust to me.


    I concede that some small measure of positive discrimination may be allowed on the "overcoming disadvantage" basis. This isn't a change in the law: things like female outreach schemes, talks/days for ethnic minority people and guaranteed interviews for male primary teacher applicants already exist. But I don't see anything in there that would allow someone to pick a inferior female candidate over a superior male one or vice versa.
 
 
 
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