Scope of Prohibited Conduct

Prohibited conduct is unlawful in various areas; however, those particularly relevant to Chambers and BSB entities are:

• Employment;

• Pupillage;

• Recruitment of members and membership; and

• Service delivery.

Employment, pupillage, recruitment of members and membership

Section 47, EqA sets out the relevant legal duties in relation to recruitment and selection of pupils and tenants, including those “permitted to work in chambers (including as a squatter or door tenant)” (section 47(9), EqA).

Under sections 47(1), (4) and (8), EqA, barristers and barrister’s clerks (including people who carry out the functions of a barrister’s clerk) must not discriminate against or victimise any person:

• in the arrangements they make for deciding to whom to offer a pupillage or tenancy;

• as to the terms on which they offer a person pupillage or tenancy; and/or

• by not offering a person pupillage or tenancy.

Similar rules apply in relation to prospective employees under section 39(1) and (3), EqA. This would cover, for example, staff recruitment by a Chambers or BSB entity.

Further, barristers and barrister’s clerks must not discriminate against or victimise a pupil or tenant (sections 47(2) and (5), EqA):

• as to the terms on which that person is a pupil or tenant;

• in the way they afford that person access, or by not affording that person access, to opportunities for training or gaining experience or for receiving any other benefit, facility or service;

• by terminating the pupillage;

• by subjecting that person to pressure to leave chambers; and/or

• by subjecting that person to any other detriment.

Similar provisions in respect of employees are set out in section 39(2) and (4), EqA. As above, this would include staff of a chambers or BSB entity.

In relation to a pupillage or tenancy, barristers and barrister’s clerks must not harass a “pupil or tenant” or a “person who has applied for the pupillage or tenancy” (section 47(3), EqA). The same applies to the treatment of Chambers’ employees and prospective employees (section 40, EqA).

A duty to make reasonable adjustments also applies to barristers and barrister’s clerks (section 47(7), EqA) as well as to employers in general (section 39(5), EqA).

Duty to prevent harassment

Under section 40A, EqA, employers “must take reasonable steps to prevent sexual harassment of [their] employees […] in the course of their employment”. The wording of this section appears to cover sexual harassment by anyone, even if they are not employed by the employer. Indeed, this is the view taken by the Equality and Human Rights Commission (EHRC), which is responsible for enforcement of the duty.[1]

In the event of a well-founded sexual harassment claim, an employment tribunal may increase the compensation awarded by up to 25% if it is found that the employer failed to comply with the section 40A duty (section 124A, EqA). The EHRC may also take enforcement action against employers who fail to take reasonable steps.[2] For further information, review ABC’s training on this duty.

Chambers and BSB entities should bear in mind this area of law is currently undergoing legislative reform. Indeed, the current version of the Employment Rights Bill (27 January 2025) at section 17 proposes an amendment to section 40A to require the taking of “all reasonable steps” (emphasis added) as well as liability for permitting harassment by third parties at section 18. It is therefore vital for barristers and their chambers and/or BSB entities to keep abreast of future changes.

Service provision

Service providers (which includes barristers) providing services to (a section of) the public, whether paid or unpaid, must not discriminate against or victimise:

• a person requiring the service by not providing them with the service;

• a person to whom they are providing a service:
  • in relation to the terms by which the service is being provided;
  • by terminating the provision of the service; or
  • by subjecting them to any other detriment (section 29(1)-(2) and (4)-(5), EqA)

Service providers must not harass people requiring the service or to whom the service is being provided (section 29(3), EqA).

The duty to make reasonable adjustments in respect of persons with a disability also applies to a service provider (section 29(7), EqA).

There are some limited exceptions to the prohibition of discrimination in relation to the provision of services; however, these are unlikely to be relevant to barristers as these exceptions are not replicated in the BSB Code of Conduct, which contains a general duty not to discriminate.[3] 

Discriminatory instructions

It is also unlawful, in relation to instructing a barrister, to discriminate against, harass or victimise them (section 47(6), EqA)