Iteshi v The General Council Of The Bar (The Bar Council)

A regulatory rule requiring barristers’ chambers to fund pupillages was not a provision, criterion or practice imposed upon an applicant for pupillage. It therefore fell outside section 12 of the Race Relations Act 1976, which addresses discriminatory terms or decisions by a body conferring a required professional authorisation or qualification.

In any event, an indirect-discrimination claim requires reliable evidence that the alleged requirement causes particular group disadvantage and disadvantage to the claimant. The available material did not establish either proposition. The funding requirement also pursued legitimate aims of equality of opportunity and quality assurance, and was proportionate.

The claimant, a black African aspiring barrister, unsuccessfully sought a pupillage. He alleged that the Bar Council’s 2003 requirement that chambers fund pupillages was indirectly discriminatory because it reduced opportunities for unfunded pupillages.

The London Central Employment Tribunal rejected the claim in a judgment registered on 19 March 2010. It held primarily that the requirement was imposed on chambers, not on the claimant, and did not fall within section 12 of the Race Relations Act 1976. It also considered the remaining indirect-discrimination issues hypothetically and found no group or individual disadvantage, and that the rule was justified.

The claimant appealed, challenging those conclusions and proportionality.

1. Appeal dismissed. The Employment Tribunal was correct to hold that the claim was not established. The 2003 funding system imposed requirements upon barristers’ chambers, but imposed none upon persons applying for pupillage. Nor did the funding status of a completed pupillage affect an application for a practising certificate.
2. Section 12 of the Race Relations Act 1976 covers, among other matters, discriminatory conditions imposed by a regulatory body upon a person seeking professional authorisation. It did not cover a rule directed to chambers concerning how they funded pupils. The claimant could not render the rule applicable to him by relying on the fact that chambers, rather than applicants, could seek a waiver.
3. The challenge to the alternative finding on group disadvantage failed. The Tribunal had not found a substantial decline in black African pupils. It was entitled to regard the statistical material as patchy and unreliable, with no adequate before-and-after comparison or evidence showing the effect of the withdrawal of unfunded pupillages on black African applicants.
4. The Tribunal was also entitled to find that there was no realistic prospect that the claimant would have obtained a pupillage, whether funded or unfunded. The material concerning successful applicants with particular degree classifications did not establish otherwise.
5. Its alternative proportionality assessment disclosed no error. The rule sought to assure funding for those unable otherwise to afford pupillage and to promote equality of opportunity. It also served quality assurance by encouraging chambers to invest in pupils’ training. The Tribunal had balanced the relevant considerations and was entitled to find the requirement proportionate.

• Employment Appeal Tribunal: appeal dismissed; the Tribunal upheld the Employment Tribunal’s judgment.
• London Central Employment Tribunal: claim for indirect race discrimination dismissed in a judgment registered on 19 March 2010.