It’s time to recognise neurodiversity at the Bar properly. The BSB publishes an annual summary of diversity data for the Bar and its 2019 report breaks the stats down by gender, ethnicity, disability and “other”. This reveals for example that although the proportion of female pupils (55%) is greater than that for males (46%), female QCs constitute only 16% of QCs. Disabled practitioners constitute 6% of the Bar (based on those declaring a disability) when the proportion of the UK working population is estimated at 13%. But how is “disability” defined? In practice, does it include autism, attention deficit hyperactivity disorder (“ ADHD”), dyspraxia and dyslexia?
Disability and Discrimination
As barristers we have a core duty not to discriminate on grounds of race, sex, disability, pregnancy and maternity, sexual orientation, marital or civil partnership, gender re-assignment, religion or belief, or age. Such discrimination is unlawful and also constitutes professional misconduct. It usually manifests itself in the form of stigmatism or discrimination in the allocation of briefs, selection of pupils or tenancy decisions.
Traditionally, “disability” is thought of in terms of physical impairment including blindness, deafness, use of limbs and conditions such as multiple sclerosis. In other words, conditions that can be readily observed and which these days no longer carry any stigma.
But how is “disability” actually defined? The Equality Act 2010 section 6 refers to a physical or mental impairment that has a substantial and long terms adverse effect on someone’s ability to carry out normal day to day activities. This can therefore encompass bi-polar disorder, autism, ADHD, dyspraxia and dyslexia. These characteristics can be grouped together under the term “neurodiversity” in contrast with people who are neurotypical. But these conditions are not so readily apparent to others such as a missing limb and still carry something of a stigma. It may be that barristers and aspiring barristers with one or more of these characteristics may either not consider that their condition is a disability at all or may not wish to be open it about for fear of being stigmatised within Chambers or by instructing advisers or considered not worthy of a career at the Bar during the recruitment and training stages.
What is happening outside the Bar?
The corporate world is now becoming fully committed to ‘diversity and inclusion” but is still struggling with the concept of neurodiversity and these conditions are often overlooked. According to ACAS, 14% of the population are neurodivergent and a study by the Chartered Institute of Personnel and Development discovered that seven out of ten businesses ignored their own neurodiversity policy. Within the Bar there seems to be little or no reliable information on the extent of neurodiversity in the profession and so far, the BSB’s efforts are focussed on the more traditional issues of gender and ethnicity plus of late, equitable briefing.
The benefits of neurodiversity at the Bar
Leaving aside the fact that discrimination on the grounds of neurodiversity is unlawful and a breach of a barrister’s core duty, let’s consider the positive benefits of neurodiverse people to Chambers and legal practice. Such people can bring a truly stunning skill set and alternative perspectives to the practice of the law particularly at barrister level.
It is well known that people with ADHD can “hyper-focus” on exceptionally complex work and excel when working to deadlines – a much valued skill in litigation. People on the autistic spectrum can often concentrate for long periods and be totally relied on to complete a complex but tedious task. Those with dyslexia often have necessarily developed strong oral skills to compensate for their condition.
These types of people however often display a lack of traditional social skills and find normal interaction in the Chambers’ working environment challenging. They can be perceived as anti-social and not team players and may need to frequently disengage from conversations or conferences in order to “decompress”. Interviews, role plays and intrusive personal questions may prove exceptionally difficult for such people to deal with and their mute or fumbled responses simply appear to neurotypical people to be sub-standard and not of the desired standard for practice at the Bar. And yet lurking behind this may be lawyers of exceptional talent and focus.
Tackling the problem of Discrimination in Chambers’ recruitment
In the outside world enlightened employers have realised that standard recruitment methods such as panel interviews and role plays may not work for neurodiverse candidates and many large groups such as Siemens, BT and EY have recruitment programmes for neurodivergent applicants. In fact, Siemens have said that “It’s not who is the best at doing an interview, it’s about who is best at doing the job.” That really sums up the positive attitude that Chambers ought to adopt towards neurodiverse candidates for pupillage, tenancy and the equitable allocation of briefs. Designing inclusivity and recruitment policies to encompass neurodiversity will pay dividends in the medium to long term. Start by simple practical changes to Chambers’ processes and work from there. For example, why not disclose interview questions in advance? Autistic people find surprise and unpredictable questions particularly challenging as they are not by nature spontaneous but they can excel when given the opportunity to prepare in advance. After all, even neurotypical barristers and judges find this to be the case by the standard direction to draft and exchange skeleton arguments in advance of a hearing. Nuerodiverse people find it very difficult to get hired and are desperate to find a role that suits their talents and in which they can excel. Many are forced repeatedly to accept sub-optimal positions and then leave after a short period which then shows up on their CV as an inability to persevere when the true reason is that they have not yet found the correct role that suits their unique talents. Chambers should have the wisdom to look beyond these the apparent negatives and consider what advantages such people can bring to legal practice.
Recognising that neurodiverse people can exceed neurotypical performance in certain areas but may struggle more than a neurotypical person in others is accepting reality. In accepting this Chambers will not only avoid discrimination against disability but will gain by having members with an enhanced range of skills and diverse approaches to legal practice. The “customer base” of instructing advisers will also be better served as that base will also include neurodiverse people. Inclusivity leads to diversity.
By Patrick Cannon, barrister, member of Old Square Tax Chambers
Patrick Cannon is a member of Old Square Tax Chambers and has recently joined the Disability Sub-Committee of the Bar Council’s Equality, Diversity and Social Mobility Committee. The views expressed above are his own. He can be contacted at www.patrickcannon.net