Are Pupillages Indirectly Discriminatory?

[Thanks to Neil Addison of Palmyra Chambers for preparing this case summary]

Is the requirement by the Bar Council that pupils should be paid a "provision, criteria or practice" that is racially discriminatory to Black Africans?

Certainly Not says the EAT (Lady Smith) in the rather unusual case of Iteshi v The General Council of The Bar.

The Claimant, described as a Black African from Nigeria had qualified as a Barrister in England but, like many others, was unable to find a place in Chambers to complete his pupillage. Rules introduced by the Bar in 2003 had made in obligatory for Chambers to pay pupils and the Claimant was unable to obtain a paid pupillage and no Chambers was allowed to offer him the unpaid pupillage he was willing to accept.

The Claimant originally tried to bring judicial review proceedings against the Bar Council but was refused leave after which he brought ET proceedings, lost and then appealed to the EAT. His complaint was that requiring pupillages to be paid was indirectly discriminatory to Black Africans however the EAT in an analysis of the background to the "funded pupillages" rule noted that it had been specifically introduced in order to help Black and Minority Ethnic pupils obtain pupillages and indeed the number of BME pupils had increased since the rule was introduced. The Claimant had failed to produce any evidence that the rule in any way affected prospective Black African pupils more than others. Merely because he had failed to obtain a pupillage was not of itself evidence of discrimination.

Though a peculiar case on its own merits paras 15-22 of the judgment provides a succinct analysis of the approach to be adopted by Tribunals in considering allegations of discriminatory PCP's. In its final paragraph the EAT noted that the Claimant had written to his MP with a copy to the tribunal accusing the tribunal Judge and members of "fraudulent manipulation of evidence..operating a scam" and being "a self constituted panel of deities". Not perhaps the best attitude for someone who wants to be an advocate.