Allegations re: Equality and Diversity Conduct Issues Rise

The SRA has seen a rise of 37% in the number of equality and diversity complaints it receives.  A report disclosed to the SRA’s Compliance Committee shows that there were 239 allegations in 2009, up from 174 in 2008.  These figures show a steady upwards trend since the start of the decade.

By type, race allegations far exceed any other but, not surprisingly, complaints concerning disability and age discrimination are also rising fast.  Various interesting patterns emerge from the figures which appear to be being kept meticulously by the SRA.

Where adverse findings were made following allegations, men outnumbered women as the subject of the complaint by almost 5:1.  While men also outnumber women in the workplace these figures show a trend which has been observed in relation to complaints both here and in other jurisdictions.  It also replicates a pattern of men generating more complaints at the Legal Complaints Service than women – a pattern observable in other jurisdiction, such as New South Wales.  Perhaps surprisingly, the number of people making complaints to the SRA also favoured men rather than women, 58:42, men:women.

What else do we know about who complains?  Only 40% of complaints come from clients, the rest being made by solicitors, staff, admitted and unadmitted, and just a handful from investigations which the SRA generates itself.  Some firms are already adopting the approach which outcomes focussed regulation encourages, which is self-reporting problems when they arise within the firm.  One firm, for example, reported an assistant solicitor and a trainee on their own staff who traded discriminatory remarks at a about a client’s race and made racially discriminatory comments to a paralegal at a firm’s dinner.  Only the latter complaint was upheld but both employees were issued with findings and warnings.

The draft handbook on which the SRA is currently consulting proposes that firms should ensure that all their staff are trained in equality and diversity.  This acts as a reminder that non-admitted staff are not likely to have received even the cursory training in E and D which trainees receive on the Professional Skills Course.  In 2009 while no solicitors were referred to the SDT, 2 unadmitted members of staff were.  Both cases involved sexual harassment of women by men.  Both individuals are now at risk of S.43 orders preventing them from working for solicitors firms again without the consent of the regulator.

Whenever an E and D complaint is made the SRA asks the firm to provide a copy of its E and D policy.  Rule 6.03 requires managers of firms to adopt and implement an appropriate policy to prevent discrimination and harassment and promote equality and diversity.  It was noticeable that in a number of cases the written policy was not compliant with 6.03 because it was out of date or did not include all the core provisions as laid down in the guidance to Rule 6.  This alone resulted in three partners in one firm receiving reprimands.

Here is a flavour of the scope of the complaints where findings were made –

• Failure to ensure a client with a known physical disability which made it difficult for her to climb steps was informed about an easier access route to their office.

• A firm which set up a service company to deal with their applications for training contracts which adopted a policy of reject applications from those without work permits – following a finding in the Employment Tribunal, the solicitor directors were issued with a warning and referred to the Office of Fair Trading.

• Sexual harassment of a female colleague – the women perpetrator had photographed a colleague whose dress sense she considered inappropriate and had shown and then discussed the photo with others – the solicitor was reprimanded.

• An elderly client on receiving her file at the conclusion of the retainer came across an email from a principal to an assistant solicitor referring to the client in a way which amounted to sex and age discrimination – a reprimand was imposed.

The SRA believes that the number of complaints it receives is diminished because, among other reasons, those who might complain do not do so because they believe nothing will happen – that is a perception which all members of the profession will want to dispel.