Jonathan Edwards (Journal, April 2009, 48) describes some of the changes that lie ahead for the traditional law practice in Scotland. The effects of deep recession and structural change, a reluctance of the principals of some practices to modernise and to co-operate, the emergence of large low-cost service paralegals and commoditisers, and increasing use of the internet are likely to change the environment for ever. This situation simply mirrors similar changes that have taken place in other sectors in recent years.
This set of circumstances is almost certain to be complicated in the post-recession years ahead by the growing political will further to enforce the implementation of, and compliance with, the UK’s equality, diversity, and discrimination agenda. This body of legislation currently covers gender, race, disability, religion or belief, age, and sexual orientation. The agenda may well be extended into the arenas of equal pay and access to the professions. The political will itself now appears to extend beyond its customary public sector sphere of influence into the private, financial and other service sectors.
Legal practices and the professionally qualified, whether as employers, service providers, or sub-contractors to government or local government agencies, are of course all subject to regulation under equality, diversity, and discrimination laws. So is the Law Society of Scotland as a qualifications body. The further development of these laws, and changing political attitudes towards their enforcement, will have a direct effect on the legal and service landscape that emerges post-recession in Scotland.
There will be fewer, larger, more tightly managed and performance led companies and service providers. These in turn will face increasingly aggressive demands for compliance from clients in the public sector to whom they are acting as subcontractors, and also from private sector companies who will have to become more sensitive to their responsibilities in the matter. There will also be a direct impact on the people who are qualifying in the hope of working in the legal sector. They are likely to face changing opportunities and increasingly difficult recruitment patterns.
So, how may Scottish legal practices respond to this additional feature of the changing landscape to which they will have to respond? What management steps may they have to take in order to be seen to be properly compliant? How will they keep their public sector contracts, escape hostile litigation, and avoid unnecessary costs?
Step one – take responsibility
There will be a need for effective leadership at the governance level to drive the implementation of equality, opportunity and diversity processes. That is, there will have to be equality champions who are appointed to move the necessary agenda forward, ensuring the motivation and compliance of people in the organisation and amongst its external partners. The Law Society of Scotland (LSS) describes this in terms of “effective leadership and accountability”.
Step two – prioritise
The Law Society of Scotland (LSS) describes the process of prioritisation as “mainstreaming”. The Society’s Equality and Diversity Strategy 2008-2011 describes its commitment "to 'mainstreaming' equality [in order] to promote diversity… [placing] Equality and Diversity at the heart of carrying out its regulatory functions effectively and fairly". It states that “mainstreaming” is the only way to ensure that diversity becomes a part of the way the Society functions, rather than an “initiative” or “project”. It sees it as the "only approach which creates the sustainability and accountability which is essential if diversity is to be meaningful within an organisation".
The LSS goes on to state that "if the goal of mainstreaming is to be achieved then it is essential that there is an overt link between Equality and Diversity and the strategic plan of the organisation. This link must be bi-directional. Equality and Diversity must always be taken account of in moves to achieve each of the organisation’s overall strategic objectives, and key issues identified through Equality and Diversity must feed into the organisation’s overall plan", where necessary influencing the direction and content of that plan.
Step three – define the agenda
The organisation will need to understand and to communicate the nature and scope of the legislation and codes of practice within which it, and its subcontractors or partners, must operate. The organisation will have to carry out an evaluation of the degree to which equality, diversity, opportunity, and discrimination characterise its operations and those of its agents or partners.
There will then have to be a definition of the actual or potential sources of discrimination in the organisation and within its external relationships. There will be a need for an objective understanding of what kinds of discrimination (such as that frequently associated with gender or mental health disability) have been reported, and why that discrimination has occurred. The preparation of such an analysis may potentially be a highly sensitive process. This will require a committed level of leadership at the governance level.
Step four – benchmark, understand risk, and assess impact
Reference is now likely to have to be made to relevant external benchmarks such as best value performance indicators (BVPIs), or the Equality Standards for Local Government (ESLG). Alternatively, companies may already be making use of the European Foundation for Quality Management (EFQM) or "Six Sigma" methodologies that could be adapted to suit the requirements of the equality and diversity agenda.
So, for instance, a target of six sigma compliance would represent a 99% chance of avoiding any form of discrimination, whereas a lower target of two sigma would expose the organisation to much greater risk at a level only of 68% avoidance. The company will then make its risk and impact assessments in order to indicate the likely consequences and cost of non-compliance in employment or in service provision (for instance in the loss of contracts).
Step five – implement strategies for change
Strategies for change may take the form of any or all of the following:
- planning for human resources, for instance remedying actual or perceived “imbalances” in employment categories such as the number of women in operational or management positions, or the proportion of ethnic minorities employed;
- re-formulating job descriptions and personnel specifications, for instance based on the needs for competence or capability, such that potential discriminatory features are eliminated at source. The LSS describes this in terms of “ensuring implementation through clear staff roles”;
- revising the recruitment and selection process, such that all types of applicants are sought and selected within the spirit and requirements of the prevailing laws, codes of practice, and such company statements of purpose as the commitment to act as an equal opportunity employer. The LSS for example has proposed competence-based recruitment based on “neutral” principles in which limits are placed on the use of personal identifying data in the selection process, and a degree of objective testing of candidates is outsourced, for instance to a sector-specific body established for that purpose;
- establishing appropriate training and development processes required for the building and reinforcement of the required capabilities. There will be a need to provide the staff and agents of the organisation with appropriate knowledge, skills, and motivation relevant to the implementation of the equality and diversity agenda, and relevant to the avoidance of discrimination. This process of training and development will have to include staff involved at the governance level that hold legal responsibilities as principals or agents. The LSS describes this in terms of “developing appropriate staff expertise and training”;
- revising performance appraisal systems, such that the staff evaluation process used by the organisation is relevant, objective, and neutral. The risk that performance criteria may not be applied equally and without favour may imply that the staff appraisal system could constitute a source of unlawful discrimination;
- revisiting promotion processes, such that no eligible person is excluded from consideration on “non-relevant” (that is, discriminatory) grounds, and that the criteria for success are objective, clearly understood, and properly applied by all concerned;
- reorganising remuneration systems, such that payment and reward are based on objective or competency criteria, and not on discriminatory grounds such as gender or race.
Step six – establish the necessary governance and line management capability
There will be a requirement to define the consequences for governance and line management capability, (i) to oversee, and (ii) to manage operations, staff, and risk associated with the equality and diversity agenda. The need to be seen to optimise opportunity, and to eliminate the risk of discrimination may have a number of implications for the tasks, responsibilities, and required competence of principals, line managers and agents. These may include:
- the shaping at governance level in the organisation of detailed policies for management action;
- the training of principals, line managers and agents in diversity management and in the nature and consequences for the organisation of discriminatory behaviour in employment and service provision;
- the clarification of the locus and nature of the supervision of line management actions and their impact.
Step seven – ensure compliance
There will be a need to establish consistent and transparent policies by which to deal with any incidence of non-compliance, discriminatory behaviour, harassment, or bullying associated with the equality, diversity, opportunity, and discrimination agenda. The complaints, grievance, disciplinary, and dismissal processes used by the enterprise and its partners may need to be adjusted to the requirements of such policies, and will need to be reinforced through appropriate forms of communication, motivation and training.
Step eight – manage performance
The change process associated with the equality and diversity agenda will have as its ultimate performance management objective the creation of employment and service effectiveness at all levels of the organisation and in its external relationships, such that the internalisation of the agenda into mainstream values and process achieves:
- the full exercise of rights, entitlements, and responsibilities by all parties concerned;
- expectations of consistent and high levels of commitment and performance from all;
- the refusal to accept under-performance from any principal, employee or agent;
- the refusal to accept behaviours in the work or service environment that are characterised by hostility to, or non-compliance with the equality and diversity agenda, whatever is the source or reason for this hostility or non-compliance;
- the non-acceptance of costs associated with failures of compliance with the agenda. Such costs are for instance described in terms of Six Sigma methodology as “costs of poor quality”, and will require remedial action.
Bertels, T (ed) (2003), Rath and Strong’s Six Sigma Leadership Handbook (Wiley).
Equality Act 2006.
Equality and Diversity Strategy 2006-2011 (Law Society of Scotland).
Morden, Tony (2004) Principles of Management (2nd ed) (Ashgate).
Morden, Tony (2007) Principles of Strategic Management (3rd ed) (Ashgate).
In this issue
- The equality, diversity and discrimination agenda: change and challenge ahead
- Justice on the green front
- Let the light in
- Needs of the family
- Reality on the West Bank
- Outside of the box
- Effective philanthropy
- Case for the defence
- Taking on the system
- Same rules for all?
- The benchmark
- Law reform update
- From the Brussels Office
- Appreciation: David Hector MacNeill
- Halfway to the Big Bang
- The same but different
- Five steps forward
- Ask Ash
- Preparing for disaster
- Rules a-changing
- Fair competition
- Time on whose side?
- 40 days and 40 nights
- Hear the grown-ups
- Problems of transition
- Scottish Solicitors' Discipline Tribunal
- Website review
- Book reviews
- Life on the other side
- Never waste a good crisis