A government scheme designed to encourage employers to recruit and retain disabled people and those with health conditions, ‘Disability Confident’, claims to be creating a ‘movement of change, encouraging employers to think differently about disability and take action to improve how they recruit, retain and develop disabled people’.

Disability Confident has replaced the ‘Two Ticks Positive About Disabled People’ scheme. It is a voluntary scheme with three levels of accreditation: ‘1: Disability Confident Committed’, ‘2: Disability Confident Employer’ and ‘3: Disability Confident Leader’. Organisations join the scheme at the lowest level and can then progress through the levels.

Level up

The first level – ‘Committed’ – requires agreement by an organisation to five commitments concerning the attraction and recruitment of disabled employees and to undertake one of the prescribed activities such as providing work experience, apprenticeships or job shadowing. The second level – ‘Employer’ – requires self-assessment against a list of criteria for employing disabled people which highlights the attraction of those with disabilities and keeping and developing them within their role. The third and final level – ‘Leader’ – requires external challenge and validation of self-assessment by a disability organisation or a disabled-person user-led organisation, providing a short statement committing to being a Disability Confident Leader, and a requirement to report on disability, mental health and wellbeing.

How is the scheme working in practice?

Despite the latest Office for National Statistics figures indicating that between Q1, 2017 and Q1, 2022 the number of disabled people in employment increased by 1.3 million, the scheme has been met with significant criticism.

Over 17,700 employers have signed up, according to the list published by the Department of Work and Pensions, but the scheme doesn’t appear to be encouraging when looking at number of disabled people in employment. Disability News Service discovered through a freedom of information request that the 13,600 employers signed up to the scheme by 13 September 2019 had pledged to provide just 8,763 paid jobs for disabled people between them, an average of 0.64 jobs per employer (‘ DWP scraps plan to strengthen Disability Confident… after just four days’ Disability News Service, 7 November 2019).

It cannot be overlooked that little more than six years ago, the DWP declared itself a gold-standard employer of disabled people under the newly launched scheme – securing the status of ‘Disability Confident Leader’ – just days before being found guilty of ‘grave and systematic violations’ of the UN Disability Convention (Committee on the Rights of Persons with Disabilities Inquiry Report CRPD/C/15/4 November 2016).

So how is the scheme reflected at the Bar? How have chambers responded to the accreditation, if at all? And most importantly, is it working to improve accessibility and representation?

The challenge for chambers

According to the Bar Standards Board’s (BSB’s) latest report on diversity at the Bar, of the 60.4% of barristers who provided information on their disability status, only 6.3% disclosed a disability. This is substantially lower than the percentage of disabled people in the employed working age UK population which is estimated at 11.3%.

When excluding those who had not provided information, 6.8% of the Bar, 7% of non-KC barristers, 8.7% of pupils and 3.9% of KCs had declared a disability as of December 2021. The figures also suggest that the percentage of those with a declared disability may decrease as level of seniority increases (Diversity at the Bar 2021, BSB).

To date, the Bar Council, the BSB, Ministry of Justice and various police forces and law firms have signed up to the accreditation, but few chambers have done the same.

One key issue is that the barriers to increasing representation of disabled barristers are greater than the scheme has been designed to tackle and kick in earlier than practice. The BSB in collaboration with its Disability Taskforce held its first event in December 2022 with the aim of ‘reviewing and improving routes into the Bar, making it a more accessible and inclusive profession and improving the culture at the Bar to strengthen the retention of disabled barristers’ (see BSB press release here).

There is increasing awareness of the lack of diversity and representation of barristers with a disability. Success in widening representation hinges on enabling disabled students and aspiring barristers to reach their full potential. This scheme, however, clearly does not cater for those in study and is unable to assist them in pursuing their ambitions.

The scheme is certainly a good starting point, in that it prompts dialogue on the issues affecting disabled practitioners, be they disabled when entering practice or acquiring a disability later in their career. But does it go far enough? Two perspectives on this are shared here. Daniel Holt views the scheme from the perspective of disabled aspiring barristers (see box one, below) and Mark Henderson considers whether the scheme can be leveraged to suit the Bar (see box two, below).

Wider issues: tough talk and tokenism

Level 3 accreditation relies heavily on input from either a disability organisation or a disabled-person user-led organisation, which should encourage the building of ties between the corporate world and associations designed to assist the disabled community. However, as the scheme is discretionary, the majority of those signed up are within the public sector and it’s simply not reaching expectations in the corporate sphere.

Another fundamental flaw is that the scheme does not require a disabled person to be employed by the organisation in order to satisfy its requirements. A survey found that just under half (49%) of scheme members reported they had recruited at least one person with a disability, long-term health or mental health condition as a result of the scheme. This rose to 66% among larger employers. (See Disability Confident scheme: summary findings from a survey of participating employers, DWP, November 2018).

A significant problem in accessing or remaining in employment for working age members of the disabled community is tokenism. Some disabilities may be more palatable for potential employers than others. Discussions surrounding equality, diversity and inclusion (EDI) invite dialogue on matters surrounding race, sexual orientation and gender (and increasingly gender identity) but disability remains a footnote. Discussions on disability are challenging and tough and require more than just gestures. Rather, frank discussions must be had on ableism, stereotypes and biases.

For a scheme promising to go beyond the notion of simply box-ticking, it places much weight on the positive PR benefits that come from gaining accreditation. But this is just marketing, not an overhaul of antiquated notions about what disability is, who disabled people are and their role in the workforce. That certainly goes beyond the scope of what the accreditation requires. And as for the Bar, a profession steeped in tradition and custom despite the important advances in EDI, the representation of disabled practitioners still has a colossal way to go.

A different kind of confidence

View from the perspective of disabled aspiring barristers

Daniel Holt, pupil barrister at 39 Essex Chambers and Chair of the Association of Disabled Lawyers
The Disability Confident Scheme lacks the substance required to achieve disability equality at the Bar. The scheme is not without value and forms part of some chambers’ attempts to address the challenges faced by disabled barristers and disabled people entering the profession. Chambers keen to create an inclusive environment for barristers, clients and staff can use the scheme as guidance, but will have to exceed the minimum standards in order to do so.
Some aspects of Levels 1 and 2 have the potential to bring disability equality to the forefront of the Bar and mitigate some of the barriers to accessing it. The scheme demands that signatories provide specific opportunities for disabled people and advertise them where disabled people will see them. Level 3 involves reporting on ‘disability, mental health and wellbeing’, which provides insight into the diversity within an organisation and essential statistics about specific sectors.
There are several aspects of the scheme that leave me with little confidence in it. Firstly, it fails to add much substance to bettering opportunities. Several of its commitments, such as not discriminating and providing reasonable adjustments, only reiterate chambers’ duties under s 47 of the Equality Act 2010 and the Bar Standards Board Code of Conduct. Chambers and their members should already be doing these as part of their legal and professional duties. The scheme is also aimed at employers and is not as easily applied to this profession, given its unique characteristics.
Secondly, only Level 3 is externally validated. Chambers can declare compliance with Levels 1 and 2 through self-assessment. External validation is particularly pertinent where self-assessments are being completed by people who may have limited knowledge and understanding of disability. Judging whether Disability Confident commitments have actually been met is often an act of faith for disabled people. Chambers need to be tested on the measures they are taking in the interests of disabled people if we are to have confidence in the scheme.
Thirdly, the scheme’s hallmark ‘guaranteed interview’ for disabled applicants who meet the minimum criteria falls short. This leaves the question of what the minimum criteria should be, and how this should be assessed. To be successful in applying for pupillage (I am unaware of the 'guaranteed interviews' being offered to lateral hires), you are often expected to use your experience to show that you meet competences such as oral and written advocacy, conferencing and compatibility with chambers’ ethos. The difficulty often lies in setting the mark needed, as the minimum criteria cannot be quantified, and success often depends on the performance of other candidates. Disability Confident chambers often approach this by offering an interview to disabled applicants who reach a set percentage of the maximum marks. This does little to help those who were not provided with the adjustments in education to address the significant disadvantage in the attainment of good grades.
Similarly, disabled aspiring barristers may not be able to spare the time required by work experience to demonstrate the desired competencies on top of managing work, studies, impairments and societal barriers. Those who can engage with opportunities are often limited to those that are accessible to them. Many buildings, such as chambers and courts, were not designed to accommodate people with mobility impairments. Equally, organisations can be reluctant to adjust working practices because of a lack of understanding and resources. The disadvantage created by these factors is not sufficiently mitigated by the points available for extenuating circumstances on the Pupillage Gateway. Guaranteed interviews do not assist if the barriers in society stop you from achieving the assessed minimum criteria.
The Bar is in the process of enhancing its understanding of disability and is ready to show its commitment to improving the accessibility of the profession. Chambers’ eagerness to improve the conditions of disabled people connected to the Bar is always welcome. Disability Confident may not be the ideal means, but such willingness presents an opportunity to develop a bespoke recognition scheme. I am confident that regulators and disabled lawyers’ organisations could administer a similar scheme tailored to the Bar’s idiosyncrasies, with external validation from the outset.

Can the Disability Confident (DC) framework be leveraged for chambers?

Doughty Street’s experience and the benefits of signing up to the Bar Council’s pilot scheme for specialist support

Mark Henderson, Doughty Street Chambers
The Bar has been slow to recognise disability discrimination as equal to other protected grounds. A failure to replace steps with a lift may be considered embarrassing but is much less likely to be considered as discrimination which is potentially unlawful and in breach of professional obligations. Societal ableism and ableist tropes, conscious and unconscious, are either inadequately understood or treated as something that could never happen at the Bar. Yet as more disabled pupils come to the Bar, more chambers are appreciating the structural obstacles and systemic discrimination faced by disabled practitioners.
The duty to make reasonable adjustments in chambers applies to all barristers and therefore to chambers. For chambers that have not already made their offices accessible, there can be a race against time to make sufficient adjustments, for example if they have awarded pupillage to a wheelchair user for whom the first barrier is getting through chambers’ entrance.
Even in chambers that have done significant EDI work in other areas, disability discrimination often remains the poor relation. It is too easy to blame listed buildings for supposedly insurmountable access constraints and to publish the Bar Standards Board’s reasonable adjustment policy as if that is job done.
At Doughty Street, to our surprise, we found the government’s Disability Confident (DC) scheme can really help. The scheme was introduced in 2016 to criticism for not being demanding enough, because Level 1 (DC Committed) and Level 2 (DC Employer) were self-accredited, with only Level 3 (DC Leader) requiring external validation.
Doughty Street accredited as Level 2 last summer following extensive work by a committed group of staff and barristers. At the outset, we decided to apply the scheme to the entire chambers’ workforce – pupils, tenants and staff. Although the scheme guidance focuses on employees, we found the DC guidance could be applied to the entire workforce relatively easily.
By asking how much we could achieve for disabled people under each criterion, not how little we could get away with to self-certify, we used the DC framework to leverage real change at Doughty Street. We viewed the Level 2 self-accreditation as part of our journey to external Level 3 validation, which we have been working hard towards achieving over the last few months.
The relatively low bar set by the scheme was justified as reducing the excuses businesses can make for not signing up. This has worked: it has gained real traction in business and especially public authorities. The fact that it represents a basic, government endorsed benchmark makes it a valuable tool in fast tracking concrete requirements that otherwise risk being shelved to await some overarching EDI strategy.
It is true that some (though not all) requirements reflect what organisations are legally obliged to do anyway. However, the knowledge gap on disability discrimination means that guidance that helps meet existing legal requirements is no bad thing. While some of the requirements are subjective, others are more concrete and go beyond what the law is perceived to require.
A good example is the guaranteed interview for disabled applicants, one of the core commitments for Level 1, and a more detailed requirement for Level 2. Its importance in increasing disabled representation in chambers derives both from its direct impact and from the wider message it sends about chambers’ commitment to equality. It is permissible to set minimum requirements, including for pupillage, although these should not be set in a way that is in practice more difficult for disabled people to meet.
The unique position of chambers means that it is helpful to work together and to obtain specialist support. There is currently a unique opportunity to do both by signing up to the Bar Council’s pilot scheme. Email: equality@barcouncil.org.uk
A Bar Council webinar ‘Disability Inclusion: Quick Wins and Easy Steps’ outlines how the DC Scheme can work at the Bar: bit.ly/40DNkCq. The BSB’s reasonable adjustment policy can be found here.