Assessment Centres for Judical Appointments and Diversity

The contents of this report should not be disclosed without prior-permission of the authors until the report has been formally accepted by the DCA. RESEARCH REPORT THE IMPACT OF ASSESSMENT CENTRES FOR JUDICIAL APPOINTMENTS ON INCREASING DIVERSITY for the Department of Constitutional Affairs 28 October 2005 By Geraldine Healy Gill Kirton Mustafa Özbilgin Moira Calveley Cynthia Forson Franklin Oikelome Ahu Tatli Centre for Research in Equality and Diversity School of Business and Management Queen Mary, University of London, Mile End, London E1 4NS. STATUS OF REPORT ..................................................................................................5 AUTHORS.....................................................................................................................5 ACKNOWLEDGEMENTS...........................................................................................5 EXECUTIVE SUMMARY ...........................................................................................6 PART ONE ..................................................................................................................13 1. INTRODUCTION ...................................................................................................13 1.1 The DCA and Judicial Appointments ............................................................13 1.2 A strategy towards a diverse judiciary? .........................................................14 2. RESEARCH OBJECTIVES AND METHOD ........................................................16 2.1 Research Objectives...........................................................................................16 2.2 Research Method ...............................................................................................16 2.2.1 Overview of assessment method.....................................................................16 2.2.2 Timing.........................................................................................................17 2.2.3 The applicants .............................................................................................17 2.2.4 The Assessors..............................................................................................19 2.3 Ethical and diversity issues................................................................................20 2.4 Fieldwork ...........................................................................................................20 2.4.1 Secondary Literature Review......................................................................20 2.4.2 Primary Data Investigation ........................................................................21 2.4.3 In-depth Qualitative Interviews .................................................................21 2.4.3 Data Analysis ..............................................................................................22 3. LITERATURE REVIEW ........................................................................................22 3.1 Introduction........................................................................................................22 3.2 Vertical and Horizontal Segregation..................................................................23 3.3 Women and black and minority ethnic groups’ achievements in Britain..........24 3.3 A critical appraisal of assessment centres..........................................................25 3.4. Strengths and weaknesses of ACs from an equality perspective......................28 3.5 Role of assessment centres in combating discriminatory practices ...................31 3.6 Conclusions........................................................................................................32 PART TWO – THE FINDINGS..................................................................................35 4. ASSESSMENT CENTRES – BACKGROUND, APPLICATIONS AND ASSESSORS................................................................................................................35 4.1 The Recorder and DDJ Competitions – statistical summary .............................35 4. 1.1 The Recorder Competition........................................................................35 4.1.2 The DDJ Competition .................................................................................37 4.1.3 Conclusions.................................................................................................44 4.2 What was the background of our interviewees? ...............................................45 4.2 The Assessors.....................................................................................................47 4.2.1 Diversity Training of Assessors..................................................................47 4.2.3 Conclusion ..................................................................................................48 4.3 Recommendations.............................................................................................49 5. PRE-APPLICATION PROCESS ...........................................................................50 5.1 Documentation..................................................................................................50 5.2 Applicant perspectives on the application form.................................................53 5.2.1 General perspectives ...................................................................................53 5.2.2 Women applicants’ perspectives.................................................................53 5.2.3 Black and minority ethnic applicants’ perspectives....................................58 2 5.2.4 White male applicants’ perspectives...........................................................61 5.3 Recommendations on the Pre-application process ............................................62 6. THE SIFT.................................................................................................................64 6.1 Documentation...................................................................................................64 6.2 Assessors............................................................................................................65 6.3 Recommendations on the Sift ............................................................................68 7. CONSULTEE PROCESS........................................................................................69 7.1 Documentation...................................................................................................69 7.1.1. Guide for Sifters - DDJ Competition .........................................................69 7.1.2 Guide for Sifters – Recorders .....................................................................69 7.1.3 Review of Consultees/Assessors’ Responses .............................................69 7.1.4 Recommendations.......................................................................................70 7.2 Assessors’ perspectives on the Consultation Process ........................................70 7.3 Applicants ..........................................................................................................72 7.3.1 Women........................................................................................................72 7.3.2 Black and Minority Ethnic Applicants .......................................................75 7.3.3 White Men ..................................................................................................78 7.3.4 Conclusions.................................................................................................79 7.3.5 Recommendations.......................................................................................80 8. THE ASSESSMENT CENTRE – DOCUMENTATION........................................81 8.1. Assessment Centre Documentation ..................................................................81 8.1.1 The Interview. .............................................................................................81 8.1.2 Role Play - Recorder...................................................................................82 8.1.3 Role Play - DDJ .........................................................................................82 8.1.4 The Assessor Guide. - Recorder ................................................................83 8.1.5 The Assessor Guide - DDJ.........................................................................83 8.1.6 - The Technical Paper.- Recorder ..............................................................83 8.1.7 Technical Paper - DDJ ...............................................................................83 8.1.8 Overall comments. ......................................................................................84 8.1.9 Panel Assessment.......................................................................................84 8.2. Recommendations............................................................................................84 9. THE ASSESSMENT CENTRE – THE INTERVIEW............................................85 9.1 Assessors............................................................................................................85 9.1.1 Women........................................................................................................86 9.1.2 Black and minority ethnic applicants..........................................................88 9.1.3 Solicitors and Barristers..............................................................................89 9.1.4 Disability.....................................................................................................89 9.1.5 Conclusion ..................................................................................................90 9.1.6 Recommendations.......................................................................................90 9.2 Applicant perspectives on the interview ............................................................90 9.2.1 General perspectives ...................................................................................90 9.2.2 Women applicants’ perspectives.................................................................91 9.2.3 Black and minority ethnic applicants’ perspectives....................................93 9.2.4 White male applicants’ perspectives...........................................................94 9.2.5 Recommendations.......................................................................................95 10. THE ASSESSMENT CENTRE – THE ROLE PLAYS....................................96 10.1 Assessors..........................................................................................................96 10.2 Applicants’ Perspectives on the Role Play ......................................................97 10.3 Recommendations:...........................................................................................99 11. THE ASSESSMENT CENTRE – THE WRITTEN & TECHNICAL PAPERS 100 3 11.1 Assessors........................................................................................................100 11.2 Recommendations..........................................................................................101 11.3 Applicants’ perspectives on the written exercises .........................................101 11.4 Recommendations..........................................................................................103 12. FEEDBACK ........................................................................................................104 12.2 Recommendations..........................................................................................104 13 ON APPOINTMENT............................................................................................105 13.1 Training..........................................................................................................105 12.2 Recommendations..........................................................................................105 13. OUTREACH........................................................................................................106 13.1 Open Days.....................................................................................................106 13.2 Positive Action Training ................................................................................109 13.3 Preparatory Courses .......................................................................................109 13.4 Recommendations..........................................................................................110 14. CONCLUSIONS..................................................................................................111 SUMMARY OF RECOMMENDATIONS ...............................................................116 General...............................................................................................................116 Assessment Centre Practice ...............................................................................117 Assessors............................................................................................................119 REFERENCES ..........................................................................................................121 4 STATUS OF REPORT This research paper has been produced with the financial support and general assistance of the Lord Chancellor’s Department, the views expressed within are those of the report’s authors and do not necessarily reflect the opinions of the Lord Chancellor nor any of his officials. AUTHORS Geraldine Healy is Professor of Employment Relations at the Centre for Research in Equality and Diversity at the School of Business and Management, Queen Mary, University of London. Gill Kirton is Senior Lecturer, at the Centre for Research in Equality and Diversity at the School of Business and Management, Queen Mary, University of London. Mustafa Ozbilgin is Senior Lecturer at the Centre for Research in Equality and Diversity at the School of Business and Management, Queen Mary, University of London. Moira Calveley is Senior Research Fellow at the Centre for Research in Employment Studies at the Business School of the University of Hertfordshire. Cynthia Forson is a Teaching Fellow at the Centre for Research in Equality and Diversity at the School of Business and Management, Queen Mary, University of London. Franklin Oikelome is a Research Fellow at the Centre for Research in Equality and Diversity at the School of Business and Management, Queen Mary, University of London. Ahu Tatli is a PhD student at the Centre for Research in Equality and Diversity at the School of Business and Management, Queen Mary, University of London. ACKNOWLEDGEMENTS We are grateful to the applicants and assessors who took part in this research project and the DCA officials who facilitated it. 5 EXECUTIVE SUMMARY PART ONE 1. Background and aims of the project 1.1 This report has been conducted by the Centre for Research in Equality and Diversity at Queen Mary, University of London. Our terms of reference were ‘to investigate the link between the DCA assessment centres and diversity, with a view to producing recommendations to make the assessment centres better able to deliver a diverse judiciary without compromising the principle of appointment on merit.’ 1.2 The study is set against espoused aims of the Department of Constitutional Affairs (DCA) to make the judiciary more open, transparent and diverse without departing from the principle of merit. Our assessment is that it is unnecessary and potentially discriminatory to couple ‘increasing diversity’’ with ‘departing from the principle of merit.’ Indeed we would argue that a diverse judiciary will enhance the quality of the judiciary. 1.3 The issue of diversity in the judiciary is far wider that the remit of this report. This research is therefore limited to assess the impact of one particular human resource intervention, which alone can only make a marginal impact on the wider issue of judicial diversity. This report therefore must be seen within wider studies of gender and ethnic segregation and the vertical and horizontal segregation in the legal profession and the judiciary as well as being part of a wider programme of modernising the judiciary. 2. Method 2.1 We have investigated the impact of assessment centres for judicial appointments on increasing the diversity for the Department of Constitutional Affairs in two competitions, one for Recorder and the second for Deputy District Judge (DDJ). To do this we have adopted a multiple approach to method which has carefully triangulated the different methods to ensure validity. 2.2 The multiple methods used included: interviews, quantitative analysis, documentary analysis including scrutiny of files, listening to recordings of interviews and role plays. Interviews were conducted with 10 assessors and 39 applicants. Applicants were chosen to provide a diverse group indicated by sex, ethnicity and profession. The study investigated each component of the assessment centre from pre-application documentation, the sifting process, the interview, the role plays and the written papers. The method triangulated different aspects of evidence investigated to provide a comprehensive analysis of the processes involved in understanding the link between assessment centres and diversity. 6 3. The Literature Review 3.1 Advances in legal protections against sex and race discrimination, and overall improvement in the educational qualifications of women and minority ethnic populations in the UK have not resulted in radical changes in occupational segregation by gender and ethnicity in the country since the 1970s. Whilst vertical segregation has become less, horizontal segregation in different occupations has remained largely intact. In the same period, there was an increased attention to recruitment and assessment systems that favour individual competences and merits above other traditional more subjective measures of assessment. Assessment centres have been hailed as methods which emphasise individual competence over subjective evaluations and they are viewed as meritocratic and egalitarian methods of assessment in comparison to their traditional counterparts. 3.2 Assessment centres are a collection of complex methods for assessing job candidates in terms of their predicted performance in key posts in large public and private sector organisations. Despite their popularity and suitability for recruiting highly skilled workers, assessment centres are criticised for suffering from common design, implementation, measurement and quality errors. Nevertheless, the literature on assessment centres tackles some concerns over equality and diversity. 3.3 There are two main approaches identified in terms of equality and diversity issues in assessment centres. These are the ‘deficit’ and the ‘difference’ approaches. Research on the former tradition considers the current model of work, i.e. the predominant white male model of work, as a marker upon which all job seekers should be assessed. The implication of this approach is that women and minority ethnic groups’ differences are considered as ‘deficits’ from the white male model and this model of assessment continues to disadvantage women and minority ethnic groups. The latter approach, however, acknowledges that work systems and structures are gendered and ethnicised and that historically women and men, and minority and majority ethnic groups are differently positioned in the labour market. Therefore, assessment which is based on the assumption of ‘sameness’ between different genders and ethnic groups, will continue to privilege white men. Therefore, they suggest that the ‘differences’ between women and men and minority and majority ethnic groups should be recognised and this recognition should inform the way assessment criteria and purpose are established. 3.4 Literature identifies that gender and ethnic bias is likely to exist in assessment centres. This may be due to a number of factors. For example, the brevity and lack of depth and detail in assessment centre design may allow bias to come into play. Imbalances in the composition of the assessment panels in terms of gender and ethnic balance may also account for some bias in the assessment process. In the same vein, training of assessors can be instrumental in addressing some forms of bias. Particular 7 attention should be paid, for example, to the issue of behavioural versus psychometric assessment, and the training should suggest a balance between behavioural observation over psychometric assessment, in which the former form of assessment is more closely associated with gender and ethnic bias. 3.5 Women and minority ethnic groups experience domestic and work lives differently than white men. Recognising these differences and allowing scope for individual differences can help address some gender and ethnic biases that may otherwise surface. At the individual level, status beliefs and self perceptions may differ by gender and ethnicity, assessors should recognise this possibility and seek to disregard such attributes as relevant assessment criteria in order to avoid bias. 3.6 Assessment centres themselves may also serve to eradicate gender and ethnic bias. This depends on the careful design and the purposive implementation of assessment centres. One of the ways that assessment centres can help eradicate bias is through adoption of a wider purpose for assessment centre method that goes beyond its remit to assess current competencies and skills towards an evaluation of potential, a resource which non-traditional candidates may possess in abundance. Furthermore, increased levels of transparency in assessment centre processes can help reduce the possibilities of allegations of bias and improve the overall accountability and credibility of the assessment centre outcomes. 3.7 Despite these wide range of linkages between assessment centre processes and issues of equality and diversity, the main effort at eradicating gender and ethnic bias starts with the evaluation of the fundamentals of assessment centre method, such as the purposes, aims, objectives, processes, and outcomes, with specific attention to address possible or actual discriminatory bias and to replace it with a strong commitment to value difference and diversity. Part 2 - FINDINGS 4. Assessment Centres – background, applications and assessors 4.1 Judicial assessment centre activities consist of a competency-based interview, a written paper, a technical paper and two role-plays. For the roleplay exercises, each candidate takes on the role of the Judicial Office holder to handle cases and make decisions. Professional actors play some of the parties involved. The assessment centres have been designed by Human Resource consultants. 4.2 In the recorder competition, gender and ethnic group did not appear to influence overall success at Sift or at the Assessment Centre. But it was found that Solicitor candidates do less well at Sift than Barrister candidates while Barristers and Judicial Office Holders appear to be as successful as each other. 8 4.3 In the DDJ competition, women are more likely to be successful at Sift and also more likely to be recommended for appointments following the Assessment Centre than males. Ethnic group did not appear to have any influence at Sift, nor at the Assessment Centre. It appears Barrister candidates are more likely to be successful at Sift than Solicitor candidates, although professional background did not appear to exert any influence at the Assessment Centre. When gender and ethnicity are combined as categories, black and minority ethnic women may have greater success rates than black and minority ethnic men. Current equality monitoring allows two boxes to be ticked for black and minority ethnic women, but one for men in the same ethnic group. Thus the current method of statistical data analysis may disguise differences by gender and ethnicity both within and between diversity groups and may have unintended consequences. Further for a realistic assessment of progress in diversity, comparisons need to be made for competitions for all levels of the judiciary. 4.4 Assessors had all received compulsory training and great care was taken to ensure a sex balance in the assessor composition of the assessment centres. Nevertheless, some applicants were interviewed by two men. In addition, there was only one black and minority ethnic assessor who had taken part in the competitions we researched but who was unavailable for interview. 4.5 Our research revealed inadequate attention paid to diversity training in the assessment centre. 4.6 Recommendations include that statistical data differentiates between sex and ethnicity and that the content of diversity training be re-examined and increased. 5. Pre-application Process 5.1 The equal opportunities statement in the pre-application documentation potentially discriminates on the grounds of age and the statement on sexual orientation can be perceived as offensive. 5.2 Many applicants had difficulty engaging with the competency approach. 5.3 Recommendations are provided on changes to guidance notes, application form, definitions of diversity and the introduction of a diversity competency. 6. The Sift 6.1 Assessors confirmed that many applicants had difficulty complying with the competency approach. 6.2 There is insufficient transparency between the recommendations of the sifters and the sift panel. 9 6.3 It was noted that the sift mark is included in the overall assessment centre ratings. Such a mark would normally determine whether someone is invited to an assessment centre and should not be carried forward. 7. Consultation Process 7.1 The consultation process as it is currently organised is not fully understood by applicants. It is seen as a mysterious process which can be damaging to some and advantageous to others. 7.2 There is a marked difference between the groups, but particularly between the black and minority ethnic candidates and the other two groups. It is clear that this group is much more aware of the subjectivity that can creep into the consultation process. They are aware of the institutionalised nature of racism in Britain and the consultation process is one area where it is likely to manifest itself. 7.3 Others expressed concern at the inconvenience to which they were putting the consultees or the potential embarrassment to themselves at having to disclose they were making an application to employers or key stakeholders in their careers. 7.4 Notwithstanding some supportive evidence of the early consultation process, we favour a system where the shortlisting is not influenced by the consultation process. 7.5 We further noted that many applicants were not immediately in tune with the terms ‘consultee’ or ‘consultation process’. 7.6 The automatic consultation process was the subject of particularly critical comment and was associated with what was seen as the system of ‘soundings’. 8. The Assessment Centre Documentation 8.1 The documentation is often unclear and does not state what the potential candidates might expect from the process. There needs to be greater consistency between the guidance notes for different competitions. 8.2 There was evidence in the role plays of opportunities to evaluate sensitivity to cultural diversity and to gender issues. 8.3 Notwithstanding the above points, it is also clear from the documentation that there is considerable effort to ensure transparency, fairness and consistency in the Assessment Centre procedures and processes thereby attempting to remove subjectivity. 9. The Assessment Centre – the Interview 9.1 The location of the assessment centre is disability friendly for a person with physical disabilities. 10 9.2 Assessor sensitivity to diversity should not be taken for granted; however, there was evidence that this can grow with greater awareness and experience. 9.3 The interviews identified inconsistent practices on diversity questioning and evident gendered dynamics. 9.4 The overwhelming view among women applicants was that there were no direct questions that disadvantaged them because of their sex or ethnicity. However, some suggested that there might be more subtle lines of questioning that were trying to uncover views and experiences of diversity issues. There was uncertainty as to how life experiences would be assessed in the interviews and evidence of inconsistent assessment of such experiences. 9.5 There was a more mixed response from black and minority ethnic applicants Some felt the experience of diversity was valued at interview, but others were not questioned on this area, or found the nature of the questions unclear and in some cases inappropriate. 10. The Assessment Centre - the Role Plays There was a general view among assessors and applicants that role-plays were a useful method of selection and their addition made a more effective selection method than previous methods of interview only. Those who had previous judicial experience, had taken part in work shadowing or had the benefit of professional judicial networks were likely to be better equipped to undertake the role plays. 11. The Written Papers Overall views were mixed on the fairness of the two written papers, with about half of applicants believing the exercises to be fair and the other half believing them to be unfair. One particular issue was the widely held belief that the technical paper for the recorder competition greatly advantaged criminal barristers, while the paper for the DDJ competition advantaged ‘high street’ solicitors. Most applicants said that they had not been prepared (by the guidance notes) for the breadth and level of knowledge they were required to demonstrate. Further, it was felt that this information had to be provided if the competitions are to be more genuinely open to candidates across the solicitor/barrister and criminal/civil divides. The identity of the applicant is known to the markers of the written papers and this practice is questioned. 12. Outreach events We are limited in the comments we are able to make with respect to outreach events as they are outside our terms of reference. We did however attend one such event as part of the research and noted their value to potential applicants. We recommend that such meetings are continued, targeted at underrepresented groups and that black and minority ethnic judges are involved as speakers, and that the impact of such events be researched. 11 13. Conclusions Our conclusions are extensive. To summarise these, our research has demonstrated that the assessment centre for the selection of the judiciary is a superior form of selection from a diversity perspective, providing certain conditions are met. However, these particular centres are not without bias in their form and implementation. From a diversity perspective, we found many problems with the assessment centres we studied. This summary must be read in conjunction with the report’s conclusions and recommendations. It is necessary that careful attention is paid to our recommendation to ensure that that the centres provide a systematically fair system of selection. We would further add that our research is limited by its focus on assessment centres and is unable to engage with wider aspects which have led to and continues to reproduce a judiciary characterised by forms of hierarchical segregation. 14. Authors The authors are all members or associates of the Centre for Research in Equality and Diversity at Queen Mary, University of London. 12 PART ONE 1. INTRODUCTION The Department of Constitutional Affairs (DCA) is currently undertaking a programme of work aimed at ‘modernising the process for appointing judges with the aims of making it more open, transparent, and increasing diversity in the judiciary without departing from the key principle of appointment on merit’. The DCA has recently extended the use of assessment centres for judicial appointments, and sought to examine the impact of this selection method on the diversity of those recommended to the Lord Chancellor for appointment. The DCA invited the Centre for Research in Equality and Diversity at Queen Mary, University of London, to conduct research into the link between the DCA assessment centres and diversity, with a view to producing recommendations to make the assessment centres better able to deliver a diverse judiciary. This report presents the findings from this research. The lack of diversity of the judiciary has been well documented in various sources1. It is demonstrated at all levels in the judicial hierarchy, but is at its starkest at the most senior levels. This shapes the background to this report, but examination of wider issues of diversity is outside our remit. The following section provides information on the DCA and sets the context for the research. 1.1 The DCA and Judicial Appointments Judicial Appointments Directorate is part of the Department for Constitutional Affairs (DCA). The DCA is responsible for upholding justice, rights and democracy. Specifically its objectives are to: • • • Provide effective and accessible justice for all Ensure people’s rights and responsibilities Enhance democratic freedoms by modernising the law and the constitution. The arrangements for the appointment of judges in England and Wales are currently the responsibility of the Lord Chancellor, supported by his officials in the Judicial Appointments Directorate. On the 1 April 2006, an independent Judicial Appointments Commission will be created as part of the implementation of the Constitutional Reform Act 2005. The JAC will be a nondepartmental public body and will be responsible for the administration of appointments of the judiciary for England and Wales. 1 E.g. Malleson, K. 2000, Department of Constitutional Affairs 2004, Commission for Judicial Appointments (2005) Annual Report. 13 DCA has recently piloted the assessment centre approach for Recorder competitions on one of the court ‘circuits’ (the Western Circuit), and in addition for fee-paid Chairs of the Employment Tribunals. Assessment Centres are already in place for three Deputy District Judge (DDJ) competitions - namely for positions as DDJ in the County Courts dealing with Civil Work, DDJ in the Magistrates Court’s dealing with criminal work and as Deputy Queen’s Bench Master dealing with civil work in the High Court. There has long been public concern about the unrepresentative background of the judiciary; this concern has grown in recent years, partly reflecting the general increasing awareness of race and gender issues in all areas of public life. The judiciary is characterised by occupational segregation by gender and ethnicity. An Equal Opportunities Commission (EOC) publication – Sex and Power: Who runs Britain? – highlights the fact that in 2004 only 8.3 per cent of high court judges and above were women, although this represented a 1.5 per cent change over 2003-04. The factors sustaining and reproducing occupational segregation by gender continue to puzzle policy-makers and there are continued efforts in various spheres of employment to tackle it. It is a major policy and research focus of the EOC, which has produced four research reports on the topic in the last year.2 Statistics3 relating to the composition of the judiciary show that specifically women and ethnic minority groups are severely underrepresented in England and Wales. Less than 25% of the judiciary are women and less the seven per cent are from ethnic minority groups. In the courts the statistics are even starker where less than 16% and 4% of judges are women or from ethnic minority groups respectively. By comparison women comprise over 51% of the population and ethnic minorities 8% in England and Wales. 1.2 A strategy towards a diverse judiciary? The following is drawn from the DCA website and reflects the importance attributed to diversity in terms of DCA espoused key priorities and planned action in the field of diversity4: “We will drive forward work to increase the diversity of the judiciary. If the public is to have full confidence in the justice system, it is vital that the judiciary reflects the public it serves. While we have made progress - the appointment of the first female Law Lord, and the first High Court judge from a minority ethnic background - there is much more to do. 2 Dale, A., Jackson, N. and Hill, N. (2005) ‘Women in non-traditional training and employment’; Fuller, A., Beck, V. and Unwin, L. (2005) ‘Employers, young people and gender segregation’; Miller, L., Neathey, F., Pollard, E. and Hill, D. (2004) ‘Occupational segregation, gender gaps and skill gaps’; Miller, L., Pollard, E., Neathey, F., Hill, E. and Ritchie, H. (2005) ‘Gender segregation in apprenticeships’. 3 Department for Constitutional Affairs, Increasing diversity in the judiciary. Summary of Consultation Paper (October 2004). 4 http://www.dca.gov.uk/dept/priorities2005.htm#3 14 All appointments must be made solely on merit. As we prepare for the creation of the Judicial Appointments Commission, we must work to open up the system and to widen the pool of candidates for appointments. We will improve the information available to candidates and reach out to those groups that have not traditionally applied for appointment. We will extend judicial work-shadowing to enable potential applicants to learn about a wider range of judicial posts, and we will look at the benefits of mentoring schemes to help salaried judges develop their careers. We will review the eligibility requirements to ensure that judicial appointments are open to everyone with the appropriate skills. This could include legal executives and legally qualified magistrates, whose experience of sitting as magistrates might be taken into account. Alongside the part-time working arrangements introduced this year we will develop a career break scheme to ensure that a judicial career is open to as wide a range of people as possible. We will also consider whether the prohibition on judges returning to practice should be lifted for some judges.” This public commitment to diversity is spelt out in the DCA Strategy 2004-9. We were also interested to understand how this priority fitted more specifically with diversity priorities in the DCA. Again these were found in the DCA website5.There is clear evidence of high level espoused commitment to diversity and strategies for organisational change. 5 http://www.dca.gov.uk/dept/minrept.htm 15 2. RESEARCH OBJECTIVES AND METHOD 2.1 Research Objectives The research objectives were spelt out by the DCA in the original tender specification. These are: • • • to examine the experience and perceptions of individual candidates (both successful and unsuccessful) about the impact of the process on diversity (in relation to gender, ethnicity, disability and professional background) to analyse the impact of the selection process on the diversity of those selected (in relation to gender, ethnicity, disability and professional background) and determine whether any of the following elements of the process could potentially lead to a particular group being disadvantaged: • the sift process • each element of the assessment centre (i.e. role play exercises, written exercise, technical paper, interview) • the assessment centre methodology • the contents of guidance to panels and training material • the composition of selection panels subject to the findings of this work, to suggest recommendations for improvements to the process to ensure it is fair to candidates from all backgrounds. The results of this research will inform the development of the selection process in the next planned assessment centres in advance the establishment of the Judicial Appointments Commission in 2006. 2.2 Research Method The method used to achieve these objectives was informed by the criteria set out in the specification. The research team has translated these criteria into a practical, feasible and robust research project. Our tender identified some aspects of method where we would deviate from the original specification. As the research developed, other areas of work were included which were not anticipated in the original tender. 2.2.1 Overview of assessment method The research involved a range of activities to determine whether the process gives rise to any bias, real or perceived, against those from particular groups. These included: (a) conducting semi-structured face-to-face research interviews with candidates and assessors; (b) reviewing the selection material on individual candidates 16 (c) reviewing the application materials, guidance to panels, training materials, assessment centre exercises etc. (d) reviewing quantitative data on DDJ competition and Evaluation document on Recorder competition. (e) attending an open evening (f) meeting with consultants who designed the scheme (g) presenting preliminary findings to DCA officials 2.2.2 Timing The research has been conducted under very tight timescales in order to allow recommendations to be implemented before the next round of assessment centres in early 2006. The table below gives timescales for the main milestones of this project as undertaken. Table 1 - Project Timescales Task Discussions with DCA Introduction to available secondary data Literature review Documentary data analysis Interviews with assessors Interviews with applicants Interview with consultants Analysis of interviews Analysis of other data sources Presentation of initial findings to DCA Final report To be completed by: August End September Mid October Mid October 26 October 2005 31 October 2005 2.2.3 The applicants It was agreed that the sample would seek to reflect the main groups targeted in this project for diversity. Thus the qualitative interview programme sought to achieve a balance between these different groups and white males. We therefore sought to interview equal numbers of the following groups: • • • • • • Minority ethnic female barristers Minority ethnic female solicitors Minority ethnic male barristers Minority ethnic male solicitors White female barristers White female solicitors 17 • • White male barristers White male solicitors The DCA were mainly successful in recruiting applicants who fitted the above groups. Although it emerged that the hardest group to recruit to the project were minority ethnic barristers. Although we were investigating the impact of diversity in assessment centres, in order to achieve a reasonable proportion of candidates from black and minority ethnic groups, we invited all those who had applied to take part in the study. Thus in effect our investigation changed to investigating those who had applied for a judicial appointment and wholly or partly took part in the assessment centre. This was a necessary adjustment if we were to involve those whose applications were sought in order to enhance the judiciary. The majority of the interviews were completed by early October 2005. The sample is not representative of these groups in the judiciary as a whole. Indeed this is a strength of the method employed, in that it allows underrepresented groups to provide qualitative insight into their experiences. Table 2 sets out the number of people interviewed from each group. This table also provides information about the number interviewed who were accepted for either DDJ or Recorder, rejected following the assessment centre, or rejected following sift. These figures are purely descriptive of those interviewed and no statistical inference can be drawn from them. 39 judicial candidates were interviewed in total. As an incentive to participate, vouchers worth £50 were offered to participants. 18 Table 2: The acceptance/rejection of candidates by diversity group Group Number involved Accepted Following AC Rejected Following AC Rejected following sift Minority ethnic female barristers Minority ethnic female solicitors Minority ethnic male barristers Minority ethnic male solicitors White female barristers White female solicitors White male barristers 5 1 3 1 6 3 1 2 1 2 3 3 6 1 1 5 3 2 5 2 3 5 3 2 White male solicitors 5 1 4 Total 39 14 17 8 Individual candidate data for this study were sourced from those who applied for the Deputy District Judge (Civil) competition 2004/05 and the Recorder (Western Circuit) competition 2004/05. Available data on each candidate includes assessments of individual candidates at each stage of the process, audio cassettes of role play exercises and interviews, and feedback questionnaires completed by candidates and assessors. 2.2.4 The Assessors In addition to applicants, we have also interviewed assessors. Again semistructured interviews were undertaken. The assessors were made up of a diverse group. Four were women, six were men, one was chair of a recorder competition, two were judicial interviewers for recorder competition, five were DDJ (both interviewers and chair). Thus a good selection of lay, judicial, DCA, recorder and DDJ interviewers were interviewed. No black and minority and ethnic assessors were interviewed. The assessors were sent a letter along the same lines as those sent to applicants. They were given vouchers, but were paid expenses. To facilitate 19 the recruitment of assessors to participate in the projects, some interviews were organised as 'sitting days' for a couple of the judges 2.3 Ethical and diversity issues All participants invited to take part in the research for this report were informed by the DCA of the context of the research, including its purpose, the issues likely to be raised and what participation would involve and were informed that to participate was entirely voluntary. The DCA also agreed to gain consent from participants for the use of personal information held by the DCA relating to their application. This consent advised them that all material used from their personal files and from any interviews that they may participate in would be not be identifiable nor attributed to them. Each interviewee was advised that the interview was confidential and that nothing stated would be directly attributed to an individual. DCA was concerned that ‘The researchers involved will need to be sensitive to any variations reflecting diverse backgrounds’. The team, which conducted this research, is experienced in researching equality and diversity issues and, of particular importance, is fully committed to principles of equality and diversity in the employment relationship. The research team was composed of researchers with diverse ethnic backgrounds: English, Ghanaian, Nigerian and Turkish and made up of men and women. 2.4 Fieldwork The work was conducted in four overlapping parts: 1. 2. 3. 4. Secondary Literature Review Primary Data Investigation In-depth Qualitative Interviews Data Analysis Each of these is described below, although it should be recognised that they were completed both sequentially and simultaneously. This was possible because of the available expertise and number of researchers undertaking the study. Early meetings took place with DCA officials and with the consultants who designed the assessment centre for the judiciary. There was regular communication with the DCA throughout the project. The project involved a triangulated method to the study of possible recruitment and assessment bias. 2.4.1 Secondary Literature Review The first part of the project involved a systematic review of the relevant academic literature on segregation and assessment centres. This part 20 situated the practice of assessment centres of the DCA in its broad context. It drew on academic and practitioners sources and was also informed by publications produced by, for example, relevant Government departments, the Law Society, the Bar Council, the Equal Opportunities Commission and the Commission for Racial Equality. 2.4.2 Primary Data Investigation The second part of the project was based on a documentary review of both an institutional and individual nature, covering policies, assessment centre guidance, personal files and other documentary evidence provided by the DCA. Some 57 documents were received from the DCA and scrutinised as part of the research process. This part also incorporated analysis and thematic review of a selection of audio-taped assessment interviews. Part two was informed by the recent DCA evaluation of the pilot assessment centre and Excel files on two 2005 DDJ and recorder competitions. During this part, the job-related exercises and the interviews (i.e. competencybased interview, a written paper, a technical paper and the two role-plays) were scrutinised as was the selection and nature of training of the assessor panel. In particular, the files of the candidates interviewed (see part three below) were scrutinised for evidence of bias. We also attended the open day event on 3rd October 2005. The case studies and the technical paper were considered in the light of their general applicability to a diverse range of prior legal experiences. Analysis of the different data sources was informed by the rationale behind the design of the assessment centres, the literature sources, emergent themes from the different data sources, and the expertise of the research team. 2.4.3 In-depth Qualitative Interviews Part Three of the project built upon the conceptual framework drawn in the first two parts combining the systematic literature review in the field and the thematic analysis of documentary, taped and other data. This part was mainly undertaken in September 2005. The applicant interview schedule explored applicants’ perceptions regarding their feelings, experiences and opinions of the diversity aspects of the assessment centre process (in general and each of its component parts in particular) and the possibility of bias. The schedule also included questions on career histories, background and legal specialisms. The interviews were digitally recorded and transcribed verbatim. The assessor interview schedule included questions on the assessor role, assessor training, the sift process, the consultation process, the different component parts of the assessment centre and general points on enhancing the diversity of the judiciary. Each interview lasted approximately one hour to ensure that the complexity of the issues was properly explored. In practice the interviews ranged form 45 minutes to an hour and a half. The majority of interviews were face to face 21 and took place in London at the DCA, in Bristol and in Manchester. It was necessary to undertake some interviews by telephone as it was not possible to arrange face to face meetings. All interviews followed the same format and, with the exception of one, were recorded. At the beginning of each interview, the interviewees were advised that the interview was confidential and any comments they would make would not be attributable to them. The permission of interviewees was sought to record the interview – none withheld this. In total, 39 interviews took place with applicants and 10 with assessors. 2.4.3 Data Analysis The interview transcriptions were coded using the NVIVO software and analysed using thematic analysis techniques. In addition short reports were written on the different modes of analysis and these also informed the analysis. The Nvivo coding structure informed the organisation of the recording transcription. To ensure consistency of coding the Nvivo inputting was carried out by one member of the team. 3. LITERATURE REVIEW 3.1 Introduction The literature review provides a critical appraisal of assessment centres, their recent popularity, their perceived strengths and weaknesses from a diversity perspective and considers whether there is a role for assessment centres in combating discriminatory practice. However, it is first necessary to consider the manifestations of inequality that good practice equality and diversity strategies seek to eradicate and consider their links with assessment centres. The judiciary has traditionally been a segregated occupation dominated by white men. This segregation is further compounded by the class position of these white men; the stereotype founded in this case on significant evidence, is that the judiciary is made up of public school and Oxbridge educated white men. Indeed recent studies have reiterated this view. Such a composition was supported by the nature of judicial selection until recently, which was characterised by ‘a tap on the shoulder’ and ‘soundings’ from judges who are part of the same networks. To challenge the occupational segregation which characterises the judiciary, the DCA has introduced selection centres believing that they will offer opportunities to a wider group of candidates to demonstrate their capacity to undertake judicial appointments. However, it is noteworthy that although occupational segregation by gender and ethnicity as well as the functions and uses of assessment centres have been studied extensively, studies that focus on the intersection of occupational segregation by gender and ethnicity and assessment centres are very rare. In recognition of the limited nature of the scholarly attention to this specific field, the literature review that is presented here seeks to bridge these two subjects in order to reveal the interplay 22 between occupational segregation and assessment centres in context, drawing on examples from earlier studies, providing evidence from the field and across a range of sectors of employment. 3.2 Vertical and Horizontal Segregation Horizontal and vertical occupational segregation depict two forms of occupational structures where different groups of workers, such as women and men, majority and minority ethnic workers, are employed in different occupational groups (horizontal segregation) or they are differently represented in positions of hierarchy (vertical segregation)6. For example, in the British banking sector, horizontal sex segregation is evident in gender composition of human resources and finance departments. Whilst human resources and public relations departments employ more women than men, finance, and strategy departments have been male dominated. Vertical segregation exists between managerial and secretarial posts, where most managers are men and most secretaries are women7. Horizontal and vertical gender segregation has been widely viewed as the key manifestation of sex and race inequalities in employment. Scholars have presented a range of explanations for the persistence of occupational segregation from classical (rational choice8, human capital9) to radical critiques and Marxist accounts to feminist explanations based on patriarchy or patriarchal exclusionary behaviour10 and critiques at the organisational level11 and societal level12.Yet it is unlikely that any single theory can encompass the complex reality of occupational segregation13. The classical explanations offered for segregation have drawn on rational choice and human capital theories, suggesting, in the main, that occupation segregation by gender and ethnicity can be explained through gender and ethnic differences in human capital, i.e. the education, skills and experiences, and individual choice. That women and minority ethnic groups had lower levels of education, competencies and skills, which are required to access contested occupational positions. Therefore, women and minority ethnic groups would only be able to gain access to more privileged and secure forms of employment once they achieve similar or better volume of human capital than their male and majority ethnic peers. These earlier explanations, based on supply and demand side arguments, were evident particularly in the 1950s and 1960s when there was 6 Hakim, 1979. Özbilgin, 2002. 8 An approach to social reality that tries to explain social phenomena in terms of the rational calculations made by self-interested individuals. The approach is criticised for its failure to recognise social structures. 9 Human capital theory posits that the human capital (education, skills and experiences of individuals and groups) in the context of supply and demand in the labour market determine the labour market positions of individuals and groups. Therefore, from a human capital perspective, the relative position of women and minority ethnic groups in the labour market is merely an outcome of the free exchange of their human capital in the labour market (see Becker, 1964; Mincer, 1966; Hakim, 1979). 10 Walby 1997 11 Collinson et al 1990 12 Solomos and Back 1996. 13 Crompton and Saunders 1990. 7 23 a marked difference between educational achievements between women and men as well as between minority ethnic and majority ethnic populations in the UK. The emphasis on individual choice has been criticised for not recognising the structural constraints that shape available choices14 3.3 Women and black and minority ethnic groups’ achievements in Britain Human capital explanations fail to account for the persistence of current levels of occupational segregation by gender and ethnicity due to three main reasons15. First, the reports of the Equal Opportunities Commission suggest that today women and minority ethnic groups enjoy a higher volume of human capital, as their educational qualifications now mirror or exceed the educational levels of men and majority ethnic groups in the UK16. Despite this, the horizontal and vertical sex17 and race18 segregation has remained largely intact since the 1970s, the period which brought about human capital improvements for women and minority ethnic groups. Secondly, there has been an expansion of certain occupational categories, particularly in the service sector, which allowed for greater levels of mobility in and access to a range of occupations. Although women and minority ethnic groups have enjoyed new routes of access, as explained above, the horizontal and vertical segregation has been retained. Finally, socially, legally and economically, it has become easier for women to seek paid employment in Britain since the 1970s. Now, women and men, minority and majority ethnic groups enjoy similar levels of human capital, both in terms of education and work related experience, although some women may be penalised by taking part-time employment. Therefore, the continuation of occupational segregation cannot be explained by demand and supply side arguments alone. There were many attempts to explain how and why occupational segregation by gender and ethnicity continues today. Some authors point to the interconnectedness between the work and domestic life domains, as a source of gendered and ethnicised outcomes. It is argued, for example, that “…employer action and family choices, in changing circumstances not directly related to gender segregation have combined to produce the current high level of horizontal segregation and the smaller, but nevertheless important degree of vertical segregation”19. Furthermore, some authors suggest that the supposedly neutral structures of work are indeed created in ways to suit for the lives of white men20. The issue of ‘choice’ is a problematic concept since in reality, the ‘choices’ available to disadvantaged groups are more constrained than for men. 14 E.g. Folbre, 1994; Healy 1999. Blackburn et al., 2003. 16 EOC, 2005. 17 Hakim, 1996. 18 Modood et al., 1997 and Modood, 2004. 19 Blackburn et al., 2003: 526. 20 Cockburn, 1997. 15 24 Women’s and minority ethnic workers’ experience of work and exclusionary practices may differ from white males. Writers have pointed to ‘vicious circles of segregation’ where segregation is reproduced by informal practices and social processes and rationalised by blaming the victim or society. Attempts to challenge such practices are often undermined by existing social and hierarchical divisions21. Research on job satisfaction reveals that although female and male solicitors have similar occupational aspirations, structural inequalities account for the reason why female solicitors experience lower levels of job satisfaction22. Therefore, it is necessary to understand occupational segregation, in terms of competing influences of familial, social, educational and economic circumstances and their interplay with supply and demand for labour. Furthermore, it is also important to recognise the temporal, embedded and situated nature of occupational segregation. In the case of legal professionals in the UK, recent reports on research by the independent Commission for Judicial Appointments and Sutton Trust suggest that Oxbridge candidates had advantage over other candidates in judicial appointments, particularly in the appointment of judges23. Such bias is indicative of other deeper level divisions, the report suggests. However, the reports also conclude that there were recent efforts to improving diversity in the judiciary. The Cabinet Office has also reported extensive improvements in proportionate representation of women and minority ethnic candidates in the civil service since 199824. The above brief consideration of occupational segregation points to the complexity of the issue for those seeking to achieve greater diversity in a particular occupation. It also reminds us that many factors arise which are outside the control of those who undertake recruitment and selection. However, it is at this stage that crucial decisions are made which will influence the nature of occupational segregation. Contemporary solutions have pointed to the value of more complex selection systems that do not rely solely on the well tried interview. Assessment centres are one such solution and it is to these that we now turn. 3.3 A critical appraisal of assessment centres Assessment centres can be defined as centres which “allow job candidates to demonstrate their knowledge of job-related characteristics in relation to work performance in job simulation exercises that replicate the important situations that occur on the job”25. Empirical studies have shown that the results of assessment centres are generally even handed from an equality perspective26. The assessment of simulated experience provides a proxy for subsequent job performance rating of individuals. 21 Collinson et al, 1990. Chiu, 1998. 23 Commission for Judicial Appointments (2005) Annual Report. 24 Cabinet Office, 2004. 25 Joiner, 2002: 179. 26 Woodruffe 2000. 22 25 Assessment centres are widely used for the recruitment of highly qualified workers in the public and private sector27. Assessment centres are costly operations due to the size and scale of assessment methods used and data collected28. This has meant that assessment centres are considered prohibitively expensive methods for employing staff other than highly qualified workers29. Thus, assessment centres are now utilised widely by large public and private sector organisations to recruit and select their core workforce. Computerised tests and automation have allowed for substantial cuts in assessment centre processes30. However, assessment centre errors in the main are well recorded. Ten key assessment centre errors that jeopardize assessment validity are identified as31: 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. Poor planning, Inadequate job analysis, Weakly defined dimensions, Poor exercises, No pre-test evaluations, Unqualified assessors, Inadequate assessor training, Inadequate candidate preparation, Sloppy behaviour in documentation and scoring, Misuse of results. Despite this, assessment centres are often considered as the most effective techniques for selection of staff for high-ranking posts in public and private sectors32. Yet, assessment centres are also widely criticised for their measurement problems33 and scholars examined their complex and onerous nature34. Nevertheless, assessment centre serves as a valid method for selection and measurement of potential, current and future performance35, provided that prior attention is paid to issues of validity and reliability as well as appropriateness of its components and training of assessors36 or recruitment of professional assessors37 with the right composition of attributes, skills and competences. It is noteworthy that writers have pointed to definitions of competencies that the characteristics of a person to the job38. 27 Iles, 1992. Di Mattia, 2005. 29 Harel et al., 2003. 30 See Pollitt (2005) for the case of Lloyds TSB and assessment centres and automation. 31 Caldwell; Thornton and Gruys, 2003. 32 see Dayan, Kasten and Fox, 2002 and Tyler and Bernardin, 2003. 33 see Jackson, Stillman and Atkins, 2005. 34 Stansfield and Day, 1998. 35 See Dayan, Kasten and Fox (2002) for details of their study on assessment centre validity in the Israeli police service between 712 participants. The study has revealed that the assessment centre method is a valid method for performance assessment. 36 Strudwick, 2002. 37 Arthur et al., 2003. 38 Calveley, M. 2005. 28 26 In the public service sector, The Professional Skills for Government (PSG) programme in Britain establishes stages of career development in careers based on assessment centre outcomes39. This is expected to result in increased volumes of assessment through assessment centres. The assessment centre guidelines also include a range of considerations at each phase of the assessment centre process. These include design, preassessment, assessment and feedback stages. The job analysis stage includes diversity considerations such as the necessity of adopting a structured approach to job analysis, use of subject specialists, gathering views of stakeholders from a wide range of backgrounds, reviewing job analysis criteria regularly, creating ‘job families’ of jobs with similar characteristics, and finally limiting the number and scope of skills that need to be measured. The design stage includes diversity considerations such as regular amendments of the design, avoiding complex language, measuring skills more than once, allowing sufficient time, setting the design at an appropriate level of complexity and content, allowing for behavioural observation for most sought after criteria, careful design for group exercises, and finding a match with the interview assessor specialism and specialism of the candidate. The pre-assessment stage may contain diversity considerations including providing sufficiently detailed information to the candidates, addressing differences between different groups of candidates in terms of access to information and development opportunities, and allowing scope for assessor training. In the assessment stage, such diversity issues may include using more than one assessor in the subjective components of the assessment, anonymous rating of written papers, scores being calculated with rational decision mechanisms, standardising the processes and auditing the records. Final process is providing timely, coherent and objective feedback to the candidates about their performance. It has been noted that rejected candidates are highly sensitive to faults and errors in recruitment and selection processes, but that their perceptions of fairness increase, the more structured and job-focused the methods are (such as those typically found in assessment centres). Further, it has been found that assessments centres are less likely to attract legal challenges because candidates are more likely to feel that they have been treated fairly40. It is now considered poor recruitment and selection practice to make decisions about candidates based on global ratings such as ‘hire/don’t hire’, because such an approach allows too much opportunity for selector subjectivity and bias and reduces consistency and transparency. The use of multiple sources of information, such as in assessment centres, means that selectors have multiple dimensions against which they have to give the 39 The Professional Skills for Government (PSG) Programme, 2005. Smith, M (2003) ‘Bias in job selection and assessment techniques’, in Davidson, M. and Fielden, S. (eds) Individual Diversity and Psychology in Organizations, John Wiley 40 27 candidate scores and this increases the accountability, consistency and transparency of the process41. Although assessment centres remain a useful mechanism for recruiting highly skilled workers, assessment centre method is only appropriate if it is designed and implemented in a way which ensures high levels of validity, and fit for its original purpose, which can range from recruiting staff with high levels of competence to recognising excellence and potential. Indeed, research on school leavers suggests that assessment centres can successfully predict career performance of graduates through an assessment of their potential42. 3.4. Strengths and weaknesses of ACs from an equality perspective Although assessment centres are no better or worse in general than other methods of assessment in terms of their provision of equality of opportunity, they may suffer from certain weaknesses if some of the errors identified in the earlier sections remain unchecked. Nevertheless, several researchers have made explicit attempts at exploring the linkages between assessment centres and occupational segregation. In the main they have identified two approaches to occupational segregation in relation to assessment centre method. First is the ‘deficit’ approach. Research in this tradition examines why women and minority ethnic groups may fall short in their assessment centre scores in comparison to men and majority ethnic groups. Such studies would implicitly assume that white men present an ideal model upon which an assessment criteria can be set. This tradition does little more than support and sustain the status quo, which disadvantages women, and minority ethnic groups’ achievement in assessment centre processes. Current research on assessment centres identifies that despite a façade of diversity and equality discourse, some centres indeed adopt elitist and exclusionary practices where the white male model is idealised and in which the assessment outcome is one of disadvantage, even when non-traditional candidates perform better43. The second approach is the ‘difference’ approach44 which suggests that the gendered and ethnicised conditions of work and life are largely responsible for differentiated outcomes in assessment centres. The difference approach suggests that a fair assessment structure is only possible if gender and ethnic difference can be considered in its formulation. Whilst in the ‘deficit’ approach the dominant norm, i.e. white male, is considered as a standard against which all other candidates should be assessed, the ‘difference’ approach makes it possible for differences by gender and ethnicity to be considered in the formulation of the assessment strategies. 41 Heneman, R., Waldeck, N. and Cushnie, M. (1996) ‘Diversity considerations in staffing decisionmaking’, in Kossek, E. and Lobel, S. (eds) Managing Diversity: Human Resource Strategies for Transforming the Workplace, Blackwell 42 Waldman and Korbar, 2004. 43 Brown and Hesketh, 2004 and Grugulis 2005. 44 Goldstein, Yusko and Nicolopoulos identify the ‘difference approach’ more progressive of the two approaches. 28 A study of solicitors, which explored black-white subgroup differences of managerial competences, identified differences in cognitive competencies of black and white participants and concluded that ‘shifting away from exploring "deficits" when comparing Black and White solicitors and, instead, systematically exploring the "differences" that exist between Black and White solicitors (e.g., examine patterns of black-white differences on different critical managerial competencies) and how these are expressed in behaviours within work settings, would help enlighten us on the nature of the complex issues that exist regarding Black-White differences45’. However, we should caution that the difference approach in this case should not be confused with the difference arguments on which much of the equality debate relating to judiciary has been based. The former approach of difference does not assume difference an essential quality but a contextual and temporal phenomenon. Therefore, recognizing difference does not mean allowing such difference to be inscribed as essential trait of one gender or race in judiciary occupations. The latter approach, on the other hand, has been the main approach for promoting equality in the UK judiciary with the supporting belief that the essential differences between women and men, as well as by race would help bring diverse qualities in the workplace. However, some scholars aptly note that equality is necessary not because women and men bring different qualities to the service but because public confidence requires equal participation by gender in the service46. It is important to confront the conflicts, problems and dilemmas involved in implementing meaningful diversity initiatives. In particular, the gendered and ethnicized power structures and dynamics of social relations within institutions and organizations mean that any single initiative can only ever have partial impact47. Monitoring the processes and outcomes of initiatives such as assessment centres will, however, go some way towards ensuring adherence to the overall objective of increasing diversity. The nature and length of the assessment exercise may be linked with issues of equality. For example, drawing on a large US sample of banking sector workers, researchers have examined the gendered impacts of assessment centre processes. They conclude that there is “…some evidence of sex bias in assessment centre evaluations - evaluations that were thought until now to be free from such bias. It should be noted that the present assessment centre is one of fairly short duration (10 hours), staffed by assessors with relatively little training (four hours). It may be that the reported bias reflects this abbreviated assessment procedure48”. The composition of assessment centre panels is also relevant for issues of equality. In a study of recent graduates who have undergone interviews for legal training programmes in Scotland, researchers49 have identified that although there is little evidence of gender difference in terms of choices of 45 Goldstein et al. 2001: 805. Malleson, 2003. 47 Kirton and Greene, 2005. 48 Walsh et al., 1987: 308. 49 Siann at al., 2000. 46 29 students, the male dominated composition of the interview panels accounts for the disadvantage that female students experience in assessment centres. Selector bias, especially the tendency for selectors to recruit ‘in their own image’, is thought at least in part to explain the under-representation of women and black and minority ethnic people in higher level positions. Despite the stronger accountability for decisions that is built into assessment centres, it might still be possible for selectors to circumvent the formal procedures and make biased decisions50. Diversifying the composition of assessment centre panels is important in order to minimise the likelihood of such bias occurring. The issues of domestic and extra-occupational life are often ignored in academic studies that explore the implications of gender and race equality in assessment centres. Exploring the reasons for performance differences between white and minority ethnic solicitors in their compulsory training in England, research51 revealed that although there was no evidence of assessor bias, further study is required to explore the influence of racialised experiences outside the work domain as the complex interplay of work and non-work experiences may account for the performance bias. Gendered and racialised forms of self perception and status beliefs may have an impact on the outcome of assessment results. In simulated settings, research suggests that supposedly gender neutral processes of assessment may generate gendered outcomes due to the impact of gendered status belief52. In a study on assessment centres for executive appointments, it was revealed that even in the standardised context of assessment centres, men demonstrated more dominance and women demonstrated more affiliate behaviour53. Furthermore, intersectoral comparison suggests that the selfperception of women across a range of sectors is not significantly different54. If this is the case, women in the legal profession should not be falsely assumed to hold higher self-esteem. Combined with this, research on women barristers in Australia has revealed that there is widespread belief in gender equality when such evidence is not available in practice in the sector55. The impact of gendered self-esteem and status beliefs combined with active denial of gender inequalities may result in failure to recognise gender and ethnic equality issues pertaining to assessment centre processes. Research suggests that training of assessors increases the inter-rater reliability, the agreement between the ratings of different assessors56. This is particularly important when considering equality issues, training of assessors can be used in order to reduce gender and ethnicity bias and thus increase variability, increasing their inter-rater reliability. 50 For example see Collinson et al.’s (1990) seminal study of discrimination in recruitment and selection. 51 Dewberry, 2000. 52 Correll, 2001. 53 Men showed more dominance, especially head shaking, sitting in a closed posture, and using closed questions and directive remarks. Women showed more affiliation, especially in frequency of laughing, sitting in an open posture, and posing open questions (Luxen, 2005: 331). 54 Chandra and Loosemore, 2004. 55 Hunter, 2002. 56 Jackson et al., 2005. 30 “One of the hallmarks of assessment centres (ACs) is their focus on behavioural observation . . . However, it has also been demonstrated that assessors do not only note down behavioural observations in the observation and recording phase57”. The distinction between recording of behavioural observations and traits is significant in relation to issues of inequality. Gender and race stereotypes are misappropriated as gender and race traits. Therefore, the shift of focus from behaviour to trait is likely to result in gendered and racialised outcomes. Research on British assessment centres and the information processing behaviours of assessors reveals that the assessors are more likely to weight the observational aspects of their assessment more in rating the performance of the assesses than their psychometric aspects58. This is important as the observational aspects of assessment have higher subjective component and hence they are more likely to involve gender and race bias than psychometric aspects. However, this weakness of assessment centre methodology may be addressed through a careful design. 3.5 Role of assessment centres in combating discriminatory practices Research on assessment centre scores suggests that ethnicity, rather than gender accounts for the majority of the variation in assessment outcomes59. Discrimination may explain some of this ethnicised variation. Assessment centres may provide mechanisms to counter the effects of discriminatory practices in various ways. Some scholars argue that offering extensive developmental feedback60, support and human resource development61 opportunities for candidates to reflect on their performance and improve their approach to work62 are useful mechanisms for eliminating perceived bias. Furthermore, using assessment centres not only as a means to evaluate job candidates but also as a means to support and develop them, and tease out and value their potential as well as their current competencies is a key way in which institutions may seek to tackle occupational segregation by gender and ethnicity. However, some authors make a distinction between development and assessment centres63, where the latter is assigned a less progressive and involved role in advancement of human resources. As women and minority ethnic groups are more likely to possess potential and less likely to benefit from social capital, which equip white men with access to privileged forms of professional support, focusing on potential can help rectify the social capital imbalances by gender and ethnicity. 57 Lievens, Fruyt and Van Dam, 2001: 623-624. Anderson et al., 1994. 59 For example, Bullock (2001) examined the gender and racial outcomes of selection of 165 GP trainers in the West Midlands through assessment centres and identified that white candidates and those who have qualified for their degrees in the UK were more likely to be selected than other candidates. 60 Sharma, 2002. 61 Appelbaum et al., 1998. 62 Joiner, 2002. 63 Arnold, 2002 and Neary and Lucks 2005. 58 31 There are also good practice guidelines for effective and ethical conduct of assessment centres64. Although such guidelines are not specifically seeking to eradicate gender and ethnic segregation, nevertheless, they contribute to assessment centre validity in general. The policy statements on assessment centres, for example, should clearly indicate the objectives65 of the assessment, identify the attributes of assessees and assessors, the way data will be collected and disseminated, qualification of consultants or assessment centre developers and the method of validation. In the same vein, informed participation is one of the requirements of good practice in assessment centres. This includes informing the participants of the assessment centres of the objective of the programme, selection methods, individual choice of participating in the programme and its links with employment, advancement, and development, characteristics of the assessment staff including composition and training, and the use and the nature of the materials collected by the assessment centres, how the results will be communicated, used and kept in the records, what kind of feedback will be offered and when this will be available, possibilities of reassessment and grievance procedures, who can access the data retained in the assessment centres and under what conditions this may happen, and the way the participant may contact the relevant authorities66. Although informed participation may appear to be irrelevant to issues of gender and ethnic segregation at first sight, it nevertheless, serves as an effective mechanism for supporting transparency and accountability in the process of assessment, reducing the likelihood of allegations of gender and ethnic bias in the process. Indeed research on transparency in assessment centres concludes that increased transparency in assessment centres does moderate individual feelings of frustration and agitation associated with the process of assessment67. 3.6 Conclusions Advances in legal protections against sex and race discrimination, and overall improvement in the educational qualifications of women and minority ethnic populations in the UK have not resulted in radical changes in occupational segregation by gender and ethnicity in the country since the 1970s. Whilst vertical segregation has become less, horizontal segregation, where women and men work in different occupations has remained largely intact. The reasons for the continuation of occupational segregation are manifold. Occupational segregation is an outcome of the complex interrelationship between the individual and their perceived choices and the structural constraints faced which facilitate or enable the realisation of those choices, which often have gender and ethnicity differentiated influences. 64 Joiner, 2000. Selection, diagnosis for development, early identification, evaluation of potential, evaluation of competency or succession planning (Joiner 2000). 66 Joiner, 2000. 67 Kolk et al., 2003. 65 32 Assessment centres are a collection of complex methods for assessing job candidates in terms of their suitability for key posts in large public and private sector organisations. Despite their popularity and suitability for recruiting highly skilled workers, assessment centres are criticised for suffering from common design, implementation, measurement and quality errors. One of the understated problems that concerns assessment centres is equality and diversity issues associated with assessment centre processes and outcomes. Nevertheless, the literature on assessment centres tackles some concerns over equality and diversity. There are two traditions identified in terms of equality and diversity in assessment centres: the ‘deficit’ and the ‘difference’ traditions. Research on the former tradition considers the current structures of work, that is the predominant white male model of work, as a marker upon which all job seekers should be assessed. The implication of this approach is that women and minority ethnic groups’ differences are not fully recognised and the white male model of assessment continues to disadvantage women and minority ethnic groups. The latter approach, however, acknowledges that work systems and structures are gendered and ethnicised and that historically women and men, and minority and majority ethnic groups are differently positioned in the labour market. Therefore, assessment, which is based on the assumption of ‘sameness’ between different genders and ethnic groups, will continue to privilege white men. Therefore, they suggest that the ‘differences’ between women and men and minority and majority ethnic groups should be recognised and this recognition should inform the way assessment criteria and purpose is established. The literature identifies that gender and ethnic bias is likely to exist in assessment centres. This may be due to a number of factors. For example, the brevity and lack of depth and detail in assessment centre design may allow bias to come into play. Imbalances in the composition of the assessment panels in terms of gender and ethnic balance may also account for some bias in the assessment process. In the same vein, training of assessors can be instrumental in addressing some forms of bias. A particular attention should be paid, for example, to the issue of behavioural versus psychometric assessment, and the training should suggest a balance between behavioural observation over psychometric assessment, in which the former form of assessment is more closely associated with gender and ethnic bias. Women and minority ethnic groups experience domestic and work lives differently than white men. Recognising these differences and allowing scope for individual differences can help address some gender and ethnic biases that may otherwise surface. At the individual level, status beliefs and self perceptions may differ by gender and ethnicity, assessors should recognise this possibility and seek to disregard such attributes as relevant assessment criteria in order to avoid bias. Assessment centres themselves may also serve to eradicate gender and ethnic bias. This depends on the careful design and the purposive 33 implementation of assessment centres. One of the ways that assessment centres can help eradicate bias is through adoption of a wider purpose for assessment centre method that goes beyond its remit to assess current competencies and skills towards an evaluation of potential, a resource which non-traditional candidates may possess in abundance. Furthermore, increased levels of transparency in assessment centre processes can help reduce the possibilities of allegations of bias and improve the overall accountability and credibility of the assessment centre outcomes. Despite these wide range of linkages between assessment centre processes and issues of equality and diversity, the main effort at eradicating gender and ethnic bias starts with the evaluation of the fundamentals of assessment centre method, such as the purposes, aims, objectives, processes, and outcomes, with specific attention to address possible or actual gender bias. 34 PART TWO – THE FINDINGS 4. ASSESSMENT CENTRES – BACKGROUND, APPLICATIONS AND ASSESSORS The assessment centres introduced by the DCA for judicial appointments involve job-related exercises in addition to an interview. A group of three or four candidates attend each centre, taking part in a series of exercises that are assessed by a trained assessor panel. The assessor panel consists of a senior official from the Department for Constitutional Affairs, a lay person and two judicial office holders. All of the assessors are trained in assessment and play an equal role in making the final recommendation to the Lord Chancellor. Typically, judicial assessment centre activities consist of a competency-based interview, a written paper, a technical paper and two role-plays. For the roleplay exercises, each candidate takes on the role of the Judicial Office holder to handle cases and make decisions. Professional actors play some of the parties involved. The assessment centres have been designed by Human Resource consultants. This section presents findings on a) the statistical analysis of the results of the two competitions, b) insights from the interviews on the background of the applicants c) information about the assessors and their training. 4.1 The Recorder and DDJ Competitions – statistical summary The findings are presented by a) providing statistical information about the two competitions researched, and b) introducing each component of the assessment centre in turn and presenting findings on the analysis flowing from i) the documentation, ii) the perspectives of the assessors, iii) the perspectives of the applicants (where appropriate) iv) conclusions and v) recommendations. 4. 1.1 The Recorder Competition An earlier study conducted by Human Assets Limited concerning the Recorder Assessment Centre shows that out of a total of 87 candidates who took part in the Sift, there were 71% Males and 29% Females; 78% Whites and 7% Minority Ethnic (15% not given); 74% Barristers, 11% Solicitors and 35 15% Judicial Office Holder. A total of 36 candidates attended the Assessment Centre out of which there were 64% Males and 36% Females; 80% Whites and 3% Minority Ethnic (17% not given); 80% Barristers, 6% Solicitors and 14% Judicial Office Holders. A total of 17 candidates were appointed out of which 65% were Males and 35% Females; 59% Whites and 6% Minority Ethnic; 82% Barristers, 6% Solicitors and 12% Judicial Office Holders. According to the authors, gender and ethnic group did not appear to influence overall success at Sift or at the Assessment Centre. But they found that Solicitor candidates do less well at Sift than Barrister candidates while Barristers and Judicial Office Holders appear to be as successful as each other. Table 3 – Analysis of Assessment Process by Sex Male Female Total Took part in Sift Attended Assessment Centre Recommended by the selection panel 62 (71%) 25 (29%) 23 (54%) 13 (36%) 10 (71%) 4 (29%) 87 36 14 Table 4 - Analysis of Assessment Process by Ethnic Group White Black and Minority ethnic Ethnic origin not given Total Took part in Sift Attended Assessment Centre Recommended by the selection panel 68 (78%) 29 (80%) 8 (57%) 6 (7%) 1 (3%) 0 13 (15%) 6 (17%) 6 (43%) 87 36 14 36 Table 5 - Analysis of Assessment Process by Professional Expertise Solicitor Barrister Judicial office holder Total Took part in Sift Attended Assessment Centre Recommended by the selection panel 10 (11%) 64 (74%) 13 (15%) 2 (6%) 29 (80%) 5 (14%) 0 12 (86%) 2 (14%) 87 36 14 Source: Human Assets (2005) Evaluation of Recorder Competition 4.1.2 The DDJ Competition In our investigation of the data of the DDJ competition, a total of 386 candidates took part in the Sift. Of these, 166 (43%) were females and 220 (57%) males (fig 1). 48 (12%) were from ethnic minority background compared to 279 (72.3%) of white origin (fig 2); the ethnic background of 59 (15.3 %) candidates was not indicated. There was a higher proportion of female candidates within the ethnic minority group compared to the White group (fig 3). Solicitor candidates were predominant (N= 307, 79.5%) compared to Barrister candidates (79, 20.5%) (fig 4), a pattern also reflected across gender and ethnicity (figs 5 and 6). Out of the 386 candidates who took part in the Sift, a total of 211 (54.3%) candidate attended the Assessment centre (fig 7). In the ethnic minority group, the proportion of those invited to the Assessment Centre was higher than those that were not invited, in contrast to white candidates (fig 8). Similarly, the proportion of women invited to the Assessment Centre was higher than those that were not also in contrast to male candidates (fig 9). Furthermore, the proportion of Barrister candidates invited to the Assessment Centre was higher than those that were not invited in contrast to Solicitor candidates (fig 10). Out of the candidates that attended the Assessment Centre, a total of 78 (37%) were recommended for appointment while a total of 127 (60.2%) were rejected; the status of 6 candidates (2.8%) could not be determined (fig 11). In the ethnic minority group, the proportion of candidates approved was higher than the proportion of those rejected whilst the opposite is the case for white candidates (fig 12). Also, the proportion of female candidates approved was higher than the proportion of female candidates rejected in contrast to male candidates (fig 13). Furthermore, the proportion of Solicitor candidates approved was higher than those rejected whereas the reverse is the case for Barristers. 37 Fig 1 Gender 43% 57% Male Female Fig 2 Ethnicity 15.3% 12.4% 72.3% Not Given Minority ethnic White Fig 3 Gende r a nd Ethnicity Minority ethnic 54.17% 45.83% White 42.29% 57.71% Male Female 38 Fig 4 Professional Background 20.5% 79.5% Barrister Solicitor Fig 5 Profe ssional background and Ethnicity Minority ethnic White 18.75% 20.07% 79.93% 81.25% Barrister Solicitor Fig 6 Profe ssional background and Ge nde r Barrister 46.84% Solicitor 42.02% 53.16% 57.98% Male Female 39 Fig 7 SIFT 54.7% 45.3% Invited to AC Not invited to AC Fig 8 Sift and Ethnic M inor ity Success ful at SIFT Not Successful at SIFT 14.08% 15.14% 84.86% 85.92% Minority Ethnic White Fig 9 Sift and Ge nde r Success ful at SIFT Not Successful at SIFT 32.00% 52.13% 47.87% 68.00% Male Female 40 Fig 10 Sift and Profe ssional Background Succe ssful at SIFT Not Succe ssful at SIFT 10.29% 28.91% 71.09% 89.71% Barrister Solicitor Fig 10 Recommendation 2.8% 60.2% 37% Not known Appointed Rejected Fig 11 Re comme ndation and Ethnicity Approve d 16.42% 83.58% Re jecte d 14.29% 85.71% Minority ethnic White 41 Fig 12 Re comme ndation and Ge nde r Approve d 41.03% Re jecte d 46.46% 58.97% 53.54% Male Female Fig 13 Re comme ndation and Profe ssional Background Approve d Re jected 24.36% 75.64% 32.28% 67.72% Barrister Solicitor To see whether there were any significant differences in performance at Sift and at the Assessment Centre for different groups, the DDJ data was examined. The groups examined were Gender, Ethnic Group and Professional Background. The findings are summarised in table 6. Gender appear to influence overall success at both Sift and the Assessment Centre (Chi-S= 15.819; p<.000; Chi-S=3.030; p<.087). Apparently, women are more likely to be successful at Sift and also more likely to be recommended for appointments following the Assessment Centre than males. However it is worth noting that the relatively small Chi-square value of the latter (i.e. 3.030; p<.087) suggests that the gender influence is not as strong in this case. Ethnic Group did not appear to have any influence at Sift (Chi-S= 0.71; p<.875) nor at the Assessment Centre (Chi-S=.149; p<.829). It appears Barrister candidates are more likely to be successful at Sift than Solicitor 42 candidates (Chi-S= 20.384; p<.000) although professional background did not appear to exert any influence at the Assessment Centre (Chi-S=1.466; p<.269). Table 6: Comparisons between DDJ Candidates: Diversity & Performance Successful at Sift Not Successful at Sift Recommend ed after AC Rejected After AC Statistics Gender Male Female Total 101 (47.9%) 110 (52.1%) 211 (100%) 119 (68.0%) 56 (32.0%) 175 (100%) 32 (41.0%) 46 (59.0%) 78 (100%) 68 (53.5%) 59 (46.5%) 127 (100%) SIFT: Difference Significant (Chi-S= 15.819; p<.000; Recommendation: Difference Significant (Chi-S=3.030; p<.087) Ethnic Group White Minority Ethnic Total 157 (84.9%) 28 (15.1%) 185 (100) 122 (85.9%) 20 (14.1%) 142 (100%) 56 (83.6%) 11 (16.4%) 67 (100%) 96 (85.7%) 16 (14.3%) 112 (100%) SIFT: Difference Not Significant (Chi-S= 0.71; p<.875; Recommendation: Difference Not Significant (Chi-S=.149; p<.829) 61 (28.9%) 150 (71.1%) 211 (100%) 18 (10.3%) 157 (89.7%) 175 (100%) 19 (24.4%) 59 (75.6%) 78 (100%) 41 (32.3%) 86 (67.7%) 127 (100%) SIFT: Difference Significant (Chi-S= 20.384; p<.000; Recommendation: Difference Not Significant (Chi-S=1.466; p<.269) Prof. Background Barrister Solicitor Total Further analysis was carried out to find out whether the influence of gender on the Sift and Recommendation is moderated by ethnicity. The results are shown in tables Y and Z. Table Y indicates that at Sift, the influence of gender is significant both for White (Chi-S= 6.704, p<.011) and Ethnic Minority (Chi-S = 8.066, p<.008) candidates although this does not appear to be the case at the Assessment Centre for both groups (White: Chi-S= 1.909, p<.182; Ethnic Minority: Chi-S = .049, p<1.000). In essence, when gender and ethnicity are combined as categories, black and minority ethnic women may have greater success rates at sift than black and minority ethnic men. It is however necessary to exercise caution in generalising these findings in view of the relatively small size of the sample analysed. 43 Table 7: Sift and Gender holding Ethnicity constant Ethnic group Sift Male Gender Female Minority Ethnic Successful at Sift Not successful at Sift Total 8 (36.4%) 14 (63.6%) 22 (100%) 20 (76.9%) 6 (23.1%) 26 (100%) White Successful at Sift Not successful at Sift Total 80 (49.7%) 81 (50.3%) 161 (100%) 77 (65.3%) 41 (34.7%) 118 (100%) Chi-Square Tests: Minority Ethnic: Chi-S = 8.066, p<.008 White: Chi-S= 6.704, p<.011 Table 8: Recommendation and Gender holding Ethnicity constant Gender Male Female Approved Rejected Total 3 (37.5%) 5 (62.5%) 8 (100%) 8 (42.1%) 11 (57.9%) 19 (100%) Approved Rejected Total 25 (31.6%) 54 (68.4%) 79 (100%) 31 (42.5%) 42 (57.5%) 73 (100%) Ethnic group Centre Minority ethnic Assessment White Chi-Square Tests: Minority ethnic: Chi-S = .049, p<1.000 White: Chi-S= 1.909, p<.182 4.1.3 Conclusions In the recorder competition, gender and ethnic group did not appear to influence overall success at Sift or at the Assessment Centre. But it was found that Solicitor candidates do less well at Sift than Barrister candidates while Barristers and Judicial Office Holders appear to be as successful as each other. In the DDJ competition, women are more likely to be successful at Sift and also more likely to be recommended for appointments following the Assessment Centre than males. Ethnic Group did not appear to have any influence at Sift, nor at the Assessment Centre. It appears Barrister candidates are more likely to be successful at Sift than Solicitor candidates, 44 although professional background did not appear to exert any influence at the Assessment Centre. When gender and ethnicity are combined as categories, black and minority ethnic women may have greater success rates that black and minority ethnic men. Thus the current method of statistical data analysis may disguise differences by gender and ethnicity both within and between diversity groups. It is also the case that we cannot generalise from these results to all competitions, since we know that black and minority ethnic candidates are likely to apply in proportionately greater numbers to lower level courts than to the higher courts which have tended to retain their traditional gender and ethnic composition. 4.1.4 Recommendations • that future statistical data collection distinguishes between white and BME women and white and BME men. 4.2 What was the background of our interviewees? This section draws on findings from the interview programme. To gain insight into individual backgrounds we asked questions about what influenced the individuals to embark on careers in the legal profession and significant landmarks in their career journeys. Most participants have explained their background in terms of their education, family support, opportunities that were available at the time and difficulties associated with qualifying for and seeking jobs in various legal institutions. As the remit of the study is to examine gender, ethnicity and other diversity issues that the background information may point to, we analysed these responses by such diversity categories. In the main, the background information does not present a strong form of occupational segregation across gender and ethnicity, that is the participants accounts were varied both within and across these divisions. Although a direct agenda for diversity issues cannot be deduced from the interviews, there are two significant issues that our analysis reveals: The interviews reveal diverse backgrounds between interviewees, in particular, with regards to their routes to legal training and later work. Whilst the parents from early age have encouraged some candidates, some others have taken on role models in law from their larger families or family friends. Whilst some candidates have received legal training in early age, others have taken law courses and changed careers to move into law at a later stage. There were also others who have moved out of law for some time to continue work in another profession and yet returned back to law later. Some have gained their qualifications or entered the profession late after they had built families and had children, others qualified when they were single and remained single. 45 Furthermore, there was also reasonable diversity in terms of geographic and disciplinary areas of work as well as the types of institutional experiences gained in the process. As mentioned above, concern continues about the dominance of an Oxbridge educated judiciary. Some of our applicants certainly wanted to distance themselves from this dominant group stressing that they did not go to Oxbridge. Although our sample is not representative of applications as a whole since we have actively sought a diverse group of interviewees, their educational background is of interest. Of those who identified their university, there were a fairly even number of applicants educated in old universities as in post 1992 universities (former polytechnics). Less then 10 per cent was Oxbridge educated. Some had not received a university education, being of the generation of lawyers where this was not essential. This diversity of educational background makes this sample particularly interesting. Most participants identified their work places in terms of their relative superiority or inferiority in the legal profession. The overall sense of hierarchy between different forms of experience and background was remarkable. In the context of diversity, that is recognising and valuing difference, such hierarchical perception of institutional affiliations would do little more than retaining current status beliefs which are unequally shared by the virtue of white male dominations in the high status, high ranking establishments of law. Indeed there seems to be a hierarchy distinguished by profession, sex and ethnicity, with black and minority ethnic groups having greater success as employment tribunal chairs, solicitors as DDJs and barristers as Recorders and other high status judicial appointments. The second issue with the background information is that legal profession itself serves as a social network which offers its opportunity structures to its close members. Whilst some participants identified that their work in some bars, and other legal establishments have opened up opportunities for them to progress their careers in various different ways, some other participants have noted that the legal system presented them with barriers to access jobs instead. As the privileged and prestigious forms of legal work continue to remain white male dominated, it is difficult to argue that the forms of professional networking would help to eradicate gender and ethnic segregation. Indeed, participants often describe their difference, i.e. being women, having children, being of ethnic minority origin, not in positive terms such as unique experiences and knowledge that they can bring in legal profession, but as something that could or have jeopardised their chances of access. It is also very important to note that having other women and minority ethnic workers in the workplace have helped lessened the sense of ‘difference’ experienced by the participants. Recommendations: • that the assessment centre practice sets out to value a greater level of diversity not only in terms of ethnic and gender backgrounds but also in individual experiences which may manifest in forms of legal education, experience in different legal 46 establishments, different forms of specialisation and contribution to legal profession as it is clear from the interviews that these latter categories themselves are gendered and ethnicised. • that the assessment centre practice should de-emphasise ability to ‘fit in’, as evidenced by ability to network, have previous access to the profession and acquaintance with senior legal staff as an important competence. 4.2 The Assessors Our ten assessors had varied backgrounds. Some had their origins in the personnel field and had extensive experience in recruitment, selection and training. Others had had no such previous experience. Assessors were officials from the Department of Constitutional Affairs and judges. Previously lay members were involved in the selection process. The assessors took various roles from chair of the panel (always a DCA member) to assessor to member of sift panel. Their length of involvement in the recruitment and selection of the judiciary varied. The DCA members had prime responsibility for one competition but tended to ‘help each other out’ by contributing to other competitions, and thereby enhancing their experience. There is a deliberate strategy to ensure that the assessors are balanced by sex, so where there is male DCA chair, there will be a female judge. Only one assessor had sat with a black and minority ethnic assessor. The assessors had all received training in the assessment centre process and particularly in understanding the importance of competencies to the process. Our concern was to understand the nature of diversity training received by the assessors. 4.2.1 Diversity Training of Assessors. Diversity issues are tackled in the overall assessment centre training of the assessors. Indeed one of the main objectives of the training is to: ‘develop understanding of how to address and value diversity in selection and assessment’. Our assessors were asked first if training was compulsory and if they had attended the whole course. We were assured that not only was the training compulsory but that it the full training was followed. We asked explicitly about the diversity aspects of the training. Many of the assessors felt that this was sufficient and had been dealt with throughout the course. The word ‘mainstreamed’ was not used but some of the accounts implied such an approach. Others suggested that there was a big change 47 over time. The following quotation reflects perceptions that such a change was not without some resistance: ‘[in the last 15 years] Now there's a very great deal of it and it’s been well put together. I think it’s probably true to say on a totally different point there has been some resistance by some of my colleagues but by and large the training that is on offer is good, it’s sensitive and it’s relevant.’ Our concern is to investigate any bias in the system, we therefore concentrate on those responses which were critical of the diversity aspects of training. Whilst some assessors felt that diversity issues were threaded through the course, others when asked about the diversity content said there was: ‘not a lot really.’ ‘Well, I mean, there are some test questions . . . there are some suggested questions that you get in your training. But I wouldn’t say an awful lot. They deal with each of the competencies rather than going into diversity in itself.’ ‘The first thing that comes to mind is none but I suppose it must have been something. I can’t honestly say that any significant part of the training was directed at diversity issues. No I don’t think it was.’ ‘I know that the Lord Chancellor is very keen that there is . . . that opportunities are open for all, for all walks to go into the judiciary and that’s certainly right because members of the public want to be judged by people who are of their own not necessarily an elite although in itself the law tends to elite us because of the training we need to go through to become a Lawyer but no I don’t think there was any specific training in diversity. If someone said to me what training do you get in diversity, I would have said nil.’ These responses are very important. There is currently a mismatch between what is seen as adequate preparation with regards to diversity by those who designed the course and the training and what is experienced by those who go through the training. We also sense that those who are most aware of diversity issues in recruitment and selection, and some of the assessors certainly were, were the ones able to recognise the weakness of the approach adopted. The assessors clearly have different backgrounds and different levels of knowledge which will shape their perception of what should have been a common experience. This necessitates the importance of a systematic and consistent approach. 4.2.3 Conclusion The diversity content of the training of assessors is an essential aspect of the validity of assessment centres. Our investigations reveal that this is delivered in an ad hoc way and clear learning objectives for diversity are not established. Our conclusions are shaped by interviews with consultants as 48 supported by the assessors we interviewed, that the diversity training needs strengthening. 4.3 Recommendations • • That the content of training for assessors on assessment centres is reviewed to ensure systematic delivery of diversity training objectives. That the revision leads to detailed changes on the equality and diversity content of this training. 49 5. PRE-APPLICATION PROCESS 5.1 Documentation All candidates for judicial appointments (Recorder and District Deputy Judge) receive an information pack on the selection process. This includes a Guide for Applicants and an Application Form. 5.1.1 The Guide for Applicants The Guides for both the Recorder and the DDJ competitions are lengthy documents of some 50 pages. They each have two parts. Part One of the Recorder Guide provides information about contact details, eligibility requirements, the future of the rolling programme, information about competences and the application and selection process plus a range of annexes. The DDJ Guide differs slightly. It includes general information, eligibility requirements, competences, the selection process. Part Two of both guides is made up of the annexes, which include a job description, the competency framework, the terms and conditions of service, timetable, statement regarding factors affecting career progression, guidance for countersigners, preparation and work shadowing. The Recorder Guide includes consultation list, and the DDJ includes in the annexes con tact details, eligibility criteria for appointment, notes on jurisdiction, example of an assessment form, expected number and location of vacancies and the appraisal and mentoring scheme for deputy district judges. For posts of this level of seniority and complexity such detailed guidance is important. Our concern is with matters of diversity. We should note therefore that both Guides for Applicants include an Equal Opportunities statement which makes clear that the ‘Secretary of State and Lord Chancellor recommends for appointment applicants who appear to him to be best qualified, regardless of ethnic origin, gender marital status, sexual orientation, political affiliation, religion or disability. The Secretary of State and Lord Chancellor is committed to equality of opportunity in the appointments process for all who are eligible for judicial office. He encourages and welcomes applications women, members of ethnic minorities and people with disabilities. The Secretary of State and Lord Chancellor pays no regard to sexual orientation and has made it clear that homosexuality is not a bar to appointments. ‘Candidates with disabilities are encouraged to apply for judicial appointments and are assessed on their merits against the relevant competences for appointment. Any reasonable adaptations to the working environment that might be required will be considered’. 50 Applicants are further advised to consult the DCA website for details about the Secretary of State and Lord Chancellor’s policies and procedures on equality and diversity. Such statements are essential in any appointments process. This statement is wide ranging and fairly comprehensive. However it should be noted that ‘age’ is missing from the diversity elements. This may be considered understandable in view of the current age barrier on applications. In view of the introduction of Age Discrimination legislation in 2006, this is no longer appropriate nor sustainable. The encouragement of candidates of all ages will work at both ends of the spectrum. It will flag up to younger candidates that the judiciary welcomes early appointments and secondly it will not deter older candidates. It would also appear that there is a prioritising of equality groups with women, ethnic minorities and people with disabilities at the top and other groups of secondary importance. The statement with regard to sexual orientation can be considered offensive and may be perceived as indirect discrimination and counter to recent legislation. Clear guidance is provided on the consultation process. Applicants are advised on what and how consultees will be approached and how they will be rated. They are further given advice if they feel that they have limited visibility in their current role. For the recorder competition, consultees are approached after the application form is received and before it is considered by the sifting panel. For the DDJ competition, the Guidance Notes states that referees for those applicants invited to the assessment centre will be contacted after the sifting of applications forms and prior to the assessment centre (p11).The sifting panel considers the information provided in the application form, together with the assessments of the consultees, in order to decide whether an applicant is invited for interview. We shall return to the consultee process. We noted that consultees may be chosen from any walk of life and candidates for the Recorder were invited to consider: 1. Judges 2. Tribunal members 3. Barristers 4. Solicitors 5. Members of other professions 6. Technical experts 7. Members of your profession 8. Fellow committee members 9. Community groups 10. Members of voluntary organisations 11. Members of community groups 12. Employers/managers 51 DDJ applicants were invited to consider the same group. However, we noted that the ordering was different with the first six placed as the last six for the DDJ. This may well be because there was an expectation that DDJ candidates may benefit from a wider pool of consultees than Recorders. If our deduction is correct, this potentially raises the status of community groups and voluntary activities. This may benefit individuals who take an active part in the community and may benefit a diverse group of applicants. We also noted that recent consultees are given more weight in the assessment process. This is entirely reasonable in most cases. However, where a woman has taken a career break, this ruling could potentially disadvantage her and an exception in this case should be made. This could also apply to someone who has been forced to take time off due to an illness, disability or accident. Guidance is given on the self assessment part of the application form. For both competitions, It is made very clear (in bold) that if the competences are not adequately demonstrated in the self assessment, chances of success will be diminished. Applicants are encouraged to describe situations where judicial skills are demonstrated. Our early thoughts questioned the placing of the consultee process at this stage in the application. We were inclined to recommend that the consultee process took place either after the shortlisting had taken place, or after the assessment centre. We decided to raise this issue with our interviewees, assessors and applicants. Other aspects of guidance notes will be returned to under the specific headings of the sift and the assessment centre. 5.1.2 The application form The application form may be completed electronically or by writing clearly in black ink. Whilst the form is comprehensive, there are clear limitations of space, which will test applicants’ ability to write concisely. The application form is in three parts. Part A covers personal details, professional career, further and higher education and qualifications, characters, consultation, special sections. Part B covers the self assessment and the declaration. Part C covers assessment centre arrangements, publicly monitoring questionnaire, disability monitoring questionnaire, ethnic origin monitoring questionnaire. It has been well documented that women face a glass ceiling in a myriad of occupations. Studies of ethnicity have also shown how people with nonEnglish sounding names may be excluded from short-lists even though their qualifications are identical to similar candidates with an ‘English’ name. Such practices pervade all levels of society including professional work68. This section also includes information about health. Thus by identifying the sex, ethnicity and health status to the sifters may lead to unintended discriminatory practices. 68 Esmail and Everington 1993, 1997. 52 5.2 Applicant perspectives on the application form 5.2.1 General perspectives Interviewees were asked what had been the key influencing factors in determining how they had completed the application form. Specifically they were asked to consider usage of the guidance notes, the importance of advice from others, whether they drew on what they knew about the judicial role, their consideration of experiences of work shadowing and any other factors. Most applicants highlighted thorough and detailed attention to the guidance notes as the factor that had had the strongest influence on how they completed the application form. This generally involved a meticulous analysis of cases and reflections on professional experience. As one woman interviewee explained: ‘I think I read the guidance. I think I read each of the bits of the competence that they were looking for. Then I went through my professional diary for the last 3 years and thought about each of the cases and thought about whether they demonstrated any of the particular competences that were being looked for to a particularly good degree and some of them were better than others in terms of the evidence I produced but they were all related to cases I’d done.’ The secrecy surrounding applications for judicial appointments meant that most interviewees had been loathe to seek advice from colleagues or judges, but some (particularly white interviewees) had family members involved in the legal profession from whom they had sought advice. Some had prior knowledge of the judicial role and a minority had work shadowing experience, but these factors had less of an influence, compared with the perceived necessity to pay detailed attention to the guidance notes. However, some concern was expressed that some applicants were paying for professional help with completing the application form, which interviewees believed undermined the competency approach. Of particular note is the fact that, in general, interviewees had a lack of prior knowledge and experience of the competency approach. 5.2.2 Women applicants’ perspectives Questions inviting opinions on the competency approach of the application form generated a variety of responses. Most female interviewees commented that the competency approach meant that completing the application form was extremely time-consuming; far more so than a blank page asking the candidate to write about themselves. A small number remarked that this was particularly problematic for women with families who have less spare time in the evenings and at weekends. The apparent unfamiliarity of the legal profession with the concept of competencies seemed to explain in part at least why interviewees found the application so time-consuming an exercise. Most interviewees said that they had either been ‘headhunted’ for previous positions or simply provided a CV. One interviewee termed the approach a ‘social worker’ one, stating that it was completely ‘alien’ to solicitors. However, there was strong approval for the competency approach with interviewees believing it to be more inclusive, fairer and transparent. Many 53 female interviewees explicitly stated that they believed it had benefited them over recruitment based on background, education and ‘soundings’, for example: ‘I think must be to the benefit of everyone because it doesn’t exclude people, whereas I think previously it was very much by word of mouth, unless somebody would give somebody a nudge and a wink and you know you’d make your application and they got through on the nod and some references. But here I think references are important but I think here where you’re actually testing people’s competences; it’s probably a fairer approach.’ There were mixed views from female interviewees on the possibility within the competency framework for applicants to include a broader range of life experiences as examples. Some women seemed uncertain about whether or not life experiences beyond work would in reality be rated as highly as professional ones (particularly those situated in court), for example: ‘I thought of it really from my career, my work rather than what else I’d been doing in my life. I never thought about filling the form in the way, yeah I’m a mother, I have two kids and I make difficult decisions about my kids every day. I guess you could have done it from that but I thought it was really looking at your professional career.’ ‘All I know is there were these competences, I had to identify whether the evidence to support those competences and I have no idea whether they would view it somehow as a lesser standard just because it wasn't in a courtroom environment, I don’t know. Perhaps that ought to be made clear but it isn’t in the notes, the guidance notes.’ However, being able to use voluntary work and experiences of family had apparently helped some women meet the competency requirements. Some were uncomfortable with the very idea of introducing broader life experiences into the professional world and could see little relevance in doing so: ‘I was absolutely determined they should all be professional examples because I didn’t want to get into any of this nonsense of, you know, I showed judgment when I, you know, ran PTA at school or whatever. I really wanted to keep it professional, keep it on the tracks. And I was, I had, I think quite a lot of resources to pull on to be able to do that.’ Others seemed to have more confidence that there was a genuine effort being made to value different types of life experience, which they considered relevant to the way that they conducted themselves professionally, for example: ‘Yes. Oh yes, I explained all of that and brought up three children successfully, thank God. As I say my middle girl is a solicitor and my son is passing his exam for the Civil Service and he will hopefully be joining this area and I certainly brought in that. I made no secret of my 54 life, first of all being married for three years, and then having a daughter, being a single parent bringing her up on my own and then remarrying. Having to work to make it all come together. I didn’t make any secret of it.’ ‘This time around they’re actually asking you to go beyond professional work and to talk about your other activities, voluntary work, things of that sort so I’m now going to put some more things in that I wouldn’t otherwise have done and whether that’s going to help I don’t know but they’re asking for it so I shall put it in.’ There were several perceived disadvantages with the competency approach. Firstly, some interviewees were concerned that completing a competency based application form takes practice. Therefore, candidates who are rejected and reapply might stand more chance of success than first-time applicants, but whether or not their ability to make a good judge had risen or whether it was simply that their skill in filling in the application form had increased, was questioned. Secondly, related to this, some interviewees also felt that the competency approach requires applicants to ‘shoe-horn’ their experiences into particular boxes, commenting that the questions were rigid and narrow and that the word limit was very restrictive. Further, some female interviewees felt that evaluation of the competencies might be mechanistic, rather than qualitative, for example: ‘I think there are disadvantages in that it is very clear that boxes were being ticked. You know you give an answer in an interview and you see something being ticked and it wasn’t so much the quality of your answer but merely the fact that you gave it and I had the distinct feeling that I could have made stuff up just to fit into the box that was being ticked. And I was uncomfortable about that, I still am but I can see why it’s done.’ The idea expressed in the quote above that an applicant could invent scenarios in order to meet a competency clearly troubled a number of female interviewees, but on balance it was generally felt that this potential flaw was mitigated by the use of consultees’ reports and the assessment centre activities. Thirdly, some women interviewees found the self-assessment component of the competency approach difficult. They seemed uncomfortable with (in their words) ‘selling themselves’, ‘singing their own praises’ or ‘blowing their own trumpets’. They were worried about sounding arrogant. In terms of whether barristers or solicitors are perceived to be favoured by the competency approach of the application form, most female interviewees felt that barristers were advantaged by virtue of the greater likelihood of their having more extensive court experience and advocacy skills. Some interviewees believed that barristers are also more likely to be visible to the consultation community and there was some suggestion that the views of the 55 consultee community should not be more heavily weighted than the contents of the application form: ‘Well as I say not very much because, as I say, I appear in vast numbers of different courts in front of large numbers of different judges and I never know whether they remember me from one moment to the next. There are 5 or 6 circuit judges that I appear in front of very regularly but the consultation community is, well its pure chance, it depends on how many dinners you go to, who you chat up, have you made yourself well known to people. I don’t think it effects the quality of the work I’m afraid.’ ‘I think the underlying system favours certain people with them without the panel showing favouritism. I think it’s already there in the way the system works. Because those forms are difficult to fill, not everyone can be seen by judges, so you need to be a certain kind of person to get past that, to get to the interview I think.’ Interviewees were also asked to give a view on whether the application form contains any potential bias. Some of the comments from the female applicants related to areas of legal specialism, for example: ‘I don’t think that there is overt bias but I do think that it should have been made very clear that what is really sought for is somebody with basic high street type experience. And I felt it was really wasting my time. I don’t think anything was wasted because I found it quite interesting analysing myself and what I have done. But I do think it would have been good to know that it was pointless making this application because I had no background in land law or tenant, Children Act and housing law, and all those things that I was asked about and had no idea or answer for.’ With regard to legal background and expertise, some women interviewees commented that they felt hampered by a family specialism, while others felt that experience in family law helped with certain competences, such as ‘building relationships’. A small number of interviewees seemed troubled by the idea that the competency approach, combined with the commitment of increasing diversity in the judiciary, might act as a form of ‘reverse discrimination’, where candidates are favoured because of their demographic characteristics: ‘I mean, this is my worry, you see, that you have this incredibly transparent system of competencies which in a sense are just meant to test who you are and whether you are able to do it, at the same time as wanting a more diverse judiciary. So my worry is that I come along, and I’ve got the competencies but as well I have to fit into a minority grouping and hey presto, you’re suddenly a good candidate. Whereas actually my assessment [laughs] honestly would be that I did have the competencies but I was really too young to be appointed. I don’t have 56 sufficient experience and I should have been left for a year or two or three to get more experience and it would have been quite good for me to have been told that. And the fact that I’m a female really shouldn’t have weighted the balance at all. Now, it may not have done; that may just be my- what I’ve taken from it, but I think that may have happened.’ The above quote seems to contain some suggestion that some candidates might be appointed more on the basis of their ‘diversity’ characteristics than their ability. However, it is important to emphasise that views were mixed on this point and an alternative view was that women were benefiting from the more open, inclusive and transparent approach of the competency framework: ‘To be perfectly frank with you I thought that this form was giving me an opportunity which I otherwise would not have had. Because I really am not, and I never thought during my early years of teaching that I would be here. Because I thought really by having left the bar, that’s it. I really unless I can get back soon and then the children came along and it became even more difficult for me and it was only when we got funding from the Lord Chancellors Department as it then was, that it wanted diversity, that I thought well maybe I’ve got a chance, so in that respect this form has helped me, so I’m not going to knock it at all.’ Interviewees were asked to state whether they believed that their experiences and background, as presented in the application form, would be treated on the same level as other candidates. Generally, there was confidence in the fairness of the evaluation process: ‘Well I had no reason where mine would be more favoured or disfavoured. Everyone was answering questions under the same format so, presume that they would be read in the same way and simply compared.’ With regard to demonstrating awareness of diversity on the application form, some women interviewees had not picked up that diversity had been built into the competencies, while others felt that there were clear indications that it was necessary to give some consideration to diversity: ‘It seemed to me that there were lots of questions that were angling for comments about diversity. And again, I mean if you’ve got half a brain, you just - you know, of course you’re going to play to it; you put something in about - I mean, even if there isn’t a specific question about working in a community - I mean, that’s the kind of thing that if you’ve done, you’ve got to get it on the form! I think- I think there was lots on there about diversity. In fact, the message I walked away with loud and clear was that, you know, diversity is “in”, so just, you know, you need to put as much of it as you can in, hence my putting in mothering small children.’ Some interviewees found it difficult to meet this perceived requirement, for example: 57 ‘Now that was quite hard for me to demonstrate because although I’m very aware of how I ought to be treating people from different backgrounds when they come in front of me, I don’t actually take steps, I suppose other than being courteous, to keep up to date with changes in society and cultural and diversity issues. I suspect I came out with the sort of same things that a lot of people came out with, which was that I read the newspapers and I read my equal treatment bench book and in fact I also write and lecture on legal topics but it was quite difficult for me to give examples of how I develop knowledge as far as cultural and diversity issues are concerned.’ There is some suggestion of a belief that a tokenistic gesture toward addressing diversity issues would prove sufficient. Further, most of the female interviewees had a narrow understanding of diversity based on race and ethnicity. On balance female interviewees considered the application form to be tough, but fair. 5.2.3 Black and minority ethnic applicants’ perspectives There was strong support among black and minority ethnic interviewees for the competency approach of the application form and the intentions underlying it, for example: ‘I think it’s a fair way of doing things. It was objective in so far as these things can be but at least everyone can be judged by the same standards, which I think is good.’ ‘No I think the application form was reflective of a genuine desire to appoint on the basis of particular competences rather than on the basis of background I think it really was a very clever [thing to do].’ In terms of who would be likely to benefit from the competency approach, its inclusive nature, compared with recruitment based more on ‘soundings’, was highlighted by black and minority ethnic interviewees, for example: ‘My view was that it would probably benefit everyone and because it comes across very much as a merit sort of test and there are obviously certain criteria for the job, there are certain aspects of the job and I think the way I’ve interpreted it, the whole assessment process, is to try and see whether people who make the application and who get through could deal with those factors. However, the competences were regarded by some interviewees as rather narrow and restrictive, which might make it particularly difficult for some types of legal background to be favourably perceived, for example immigration law, where black and minority legal professionals are often concentrated. For example, one interviewee commented: 58 ‘I mean for someone like me, my civil work has been very limited. But it doesn’t mean to say that I am incapable of performing in this particular area of law. I think to a certain degree it’s more geared towards practitioners whose main area of work is civil law.’ Reflecting the above quote, there was some concern among black and minority ethnic applicants about whether the competences allowed for potential to be judged. Further there was also a perception that the questions on the application form did not allow candidates to fully demonstrate the competences required. However, this was not perceived as a problem affecting black and minority ethnic applicants only, for example: ‘No I don’t think so; in terms of the actual information, no I think the format of the application form probably makes it quite difficult to get a narrative flow going. So if you are reading it back without knowing the person, I think the application form sort of makes it hard to get to know the person and someone’s career and experience but I don’t think any one person or group is gong to be prejudiced by that. I think everyone is going under the same handicap.’ In fact black and minority interviewees did not believe that the competency approach of the application form per se is directly discriminatory, but there was some suggestion that there might be less obvious and more subtle discriminatory elements contained within it: ‘When you look at the application form itself, you can’t really see anyway that the form discriminates against you as an ethnic minority. The only thing I say is this, that questions are so wide that there may be suspicion by some ethnic minority candidates that the questions are so wide that particular candidates would know how to answer better than others, I think there is certainly that. But when you look at the form, you don’t think oh I am being discriminated against or these are biased against me. But some ethnic minority candidates might think these questions are so wide that perhaps other candidates would write a better answer to those wide questions than I would because obviously, inevitably if you’re from the ethnic minority you have a different experience and inevitably if you’re not from the ethnic minority you have a different experience and your experience might be more similar to the experiences of those who are looking at the application. So I think there is definitely that feeling, suspicion in my mind … You have to make it more specific, the questions you know, to allow people to understand what they have to put down about their experiences.’ This ‘suspicion’ related to whether there is enough room within the constraints of the competency framework for presentation of the broader life experiences that many black and minority ethnic people have. Some interviewees called for more transparency and a clearer indication of what the assessors were looking for. As another interviewee commented: 59 ‘I wouldn’t want to accuse them of being biased and I don’t think there’s any intention to be biased at all by the DCA, but yes there could be a perception of potential bias because as I said, it’s not wide enough or broad enough compass to lend itself to all these other skills that people bring, inherently have to be able to demonstrate these criteria. I do find it limited and narrow in its approach so from that point of view. There is an argument of potential bias but not a conscious or intentional bias but I think it’s just the way the application, the competitions have developed with trying to see the DCA trying to see equal ways around the process hence we’re here discussing this but the way it is at the moment it is because it doesn’t lend itself to a wider scope of public or practitioner out there really but it depends on what they want.’ As with the female interviewees, most black and minority ethnic applicants believed that barristers had an advantage over solicitors in terms of meeting the competencies: ‘I think that barristers do have an edge over solicitors because of their advocacy skills, their articulation, their entire approach to framing legal cases, in relation to some of the criteria; not all because they would be lacking in personnel skills and running offices so forth and management type of things because they are more aloof.’ Barristers also had an advantage by virtue of their higher visibility to the consultation community, which, it was felt, made it easier for them to identify the full complement of consultees: ‘Yes, and I don’t know a friendly judge that I can put the name and address down and get them to consult. I don’t know, because if you came from a local government context you never have the opportunity to have that barristers do. They work in the chambers or even if they don’t work in the same chambers they work in neighbouring chambers. So I am having to put people down like my last employer, my employer before that and I was mindful that I hadn’t seen some of these people in maybe six or twelve months and I was ringing them up having to say “Would you mind if I did this” and I felt really disadvantaged in that if they were approached, and I am assuming that they were, how eloquently they could talk about what I was doing here and now. So why have five or six people, most jobs don’t.’ Some black and minority ethnic candidates did not appear to have understood that their life experiences as members of a minority group might be valued. In fact, some had found it difficult to demonstrate awareness of diversity issues on the application form if their work did not seem to have a clear or direct diversity dimension and this was an area where the competency approach seemed to be constraining, for example: ‘I think it was very difficult because as I said in the context of my work, I don’t have to deal with diversity issues on a regular basis, but as an individual who is Asian in an organization with employees with few 60 Asian people and many from a white background, the reality is that I probably know more about diversity issues than they want to ever expect but those competencies were given very few examples, because I live it everyday.’ ‘Um, it’s difficult because you know, to think about giving examples so that you can adequately reflect your understanding of diversity is extremely difficult. It’s actually easier to talk about it than to be able to write down examples.’ However, it was also clear that many felt that their life experiences as black and minority ethnic people had an important influence on the way they carried out their work. Nevertheless some applicants felt that it was difficult to demonstrate their contribution, for example: ‘I thought about this because you know I think I’m a very valuable member of my own community in the sense of you know what I bring to it; like I’m a role model by what I do and how I live my life etc. But I’ve not had the time you know running a practice; running a house; running 3 children; running myself. I mean one doesn’t get the time to do that [voluntary/community work] but that doesn’t mean as I say I’m not part of my community. So again that part of it was quite difficult because I was thinking I can’t say I’m Chairman of whatever or I’m this that because that’s not how I do things, and I think that’s the other thing about diversity, that that kind of needs to be taken into account that not everybody is going to go down that particular route of being a member of this and being high profile and that people work in different ways and some of those ways are very quiet ways but nevertheless effective.’ Significantly, there were mixed responses from the black and minority ethnic applicants on whether they felt that their application would be evaluated fairly: ‘No, because of the fact that the judiciary is primarily full of people from a certain type of background with certain experiences and I was from an atypical background with different experiences.’ ‘I don’t know. I honestly don’t know. Because I have no idea who the consultation team is. I have no idea what soundings are made, I have no idea how much emphasis is put on referees. It’s very difficult, very difficult, because there is no one who comes along to assess your work in court. There is no one who will look at the determinations that I've written. Even the colleagues who gave the references, although would be to an extent familiar with my work, wouldn’t be that familiar because none of them would come and sit in court to see what you do and how you do it. So the answer to your question is I really don’t know.’ 5.2.4 White male applicants’ perspectives White male applicants tended to have fairly neutral views about the application form. However, they were less convinced by the competency 61 approach than women and black and minority ethnic, with some questioning its validity. For example: ‘Should there be that much emphasis on the form and should there be more emphasis on soundings? I’m not saying secret soundings but people who work with you day in, day out, you know year in year out. You know should there be more of a balance between those two? I can appreciate that you don’t want jobs for the boys you know or girls, people making recommendations of a select group of applicants. That’s precisely what you don’t want, but there is that problem if you ignore the views of somebody in a court when someone’s been going back and back and back for years in favour of the form. And other people can get someone to teach them how to do the form then [they] might have a bit of a problem.’ White male interviewees took the view that neither barristers nor solicitors were advantaged by the competency approach. They were also less troubled by the issue of visibility to the consultation community, although for most this seemed personally unproblematic, for example: ‘I am in court sometimes two, three times a week, sometimes not at all. My practice is quite varied in that respect, a lot of paperwork. But I am in court to be seen by quite a few judicial styles and I know quite a few judges socially.’ Generally the white male candidates had confidence that their applications would be judged fairly. 5.3 Recommendations on the Pre-application process • • • • • • that age is included in all future equal opportunities statements. that all groups mentioned in equality statement be welcomed and encouraged to apply. that the statement on sexual orientation be removed from the equal opportunities statement but that sexual orientation is retained as a category as the basis of equality. that the of the order of consultees be reconsidered. that less recent consultees of candidates who have taken a career break due to reasons of maternity or health should be given equal weight and the documentation amended to this effect. that sample written and technical papers be provided in application pack. 62 • • • • • that in Part A, Section 1 of the application form, personal details be removed from the application form prior to the sift. Eligibility is confirmed on receipt of the form. that more thought needs to be given to how sensitivity to and experiences of diversity are really weighted as against professional experiences. This then needs to be clearly communicated to applicants in the guidance notes. that clearer guidance to candidates is provided about how broader life experiences might be used to demonstrate competence. that a clearer steer to applicants is provided on diversity issues by developing a specific diversity competence. Provide a clearer definition of what is meant by diversity to avoid applicants interpreting it as meaning simply ethnic diversity. 63 6. THE SIFT 6.1 Documentation There are guides for ‘Sifters’ for Judicial appointments for both the recorder competition and the District Judge competition. The Recorder sifting process had changed and both new and experienced sifters were firmly advised (in bold) to read the guide closely. The guidance notes are clearly amended following the receipt of applications. Sifters for the recorder competition 05-06 were advised that 89 applications were received, two ineligible, therefore 87 files to be sifted. There were 12 vacancies. 36 applicants would be invited to interview, with a one in three chance of success. For the District Judge Competition 05-06, there were 248 applications with 15 immediate appointments and 29 reserves (44 in total).132 applicants would be invited to interview, again a one in three chance of success. The equal opportunities statement described above was placed at the beginning of the sift guidance for the DDJ competitions (p3). In these guidance notes there was a very detailed statement in bold stated that health matters are not a bar to appointment. This would provide further support for our recommendation to remove personal information from the sift stage. In the Guide for Sifters for the recorder competition, equality principles were also stated at the beginning, but in this case, these were set under a section on the Sift Process and the link made to the competency approach. It stated that the competency approach ensured diversity. ‘The competences have been designed to minimise bias. People are recruited solely on the basis of their ability to do the job and not because of their sex, race, or any other irrelevant characteristics.’ P4. Importantly, the guide states clearly that the competency based assessment allows an accurate prediction of future behaviour for the job.(p.3). Nevertheless, the following paragraph clearly states that ‘It is important to recognise the recent direction by the Lord Chancellor that applications which provide little or no evidence against each specific competence in the self assessment should not automatically be rejected. The Lord Chancellor expects sift panels, where appropriate, to infer evidence on the basis of information provided elsewhere in the applications form (and demonstrate that this has happened).The panel is reminded that they should consider the totality of the evidence in coming to their overall conclusions. Interestingly, the introduction of the sift panel following the initial sift was a recommendation of the equality and diversity consultant involved in the design of the assessment centre. We certainly found evidence where a sift panel may 64 have acted upon the Lord Chancellor’s direction. However, it is critical that such interventions by a sift panel are properly recorded and proper justification provided. It may be that the proper justification may be related to the issue of potential. If this is the case, it should be stated. The full equal opportunities statement including a health statement is found in paragraphs 13 and 14 in the sift guidance. Panel members make individual assessments before sharing these collectively. Where there is difference, the majority view is upheld. It is important to note that the panel decision must be capable of being used verbatim in feedback letters to applicants and the report needs to be clear constructive, detailed and evidence based. 6.2 Assessors In this part of the interview, assessors were asked about their experience of the sift, the sift panel, the adherence to the competency approach, visibility and the self assessment. Not all of the assessors interviewed had taken part in the sift. Therefore some of the views reported reflect their experience of handling the results of the sift after the assessment centre. Assessors were asked questions relating to the composition of the sift panel, adherence to the competency approach and disability issues. For those who had been ‘sifters’, they reported a diversity of sifters by sex. Indeed some expressed surprise at this: ‘But there were quite a lot of women about, surprisingly, I wouldn’t have thought we had that many but whenever there is always a woman sat in.’ This clearly reflects the DCA policy of ensuring a gender balance. It also reflects the changing role of women in the judicial appointment and the relative newness of this, evidenced by the surprise of this assessor. However, this is only a partial step forward, we were also told that: ‘We’ve never had a member of the minority ethnic communities in, but maybe because there are not many about at senior level, because obviously it’s senior judges that . . .’ We also sought to understand the influence of different panel members, in particular whether the influence of judges was proportionate. On the whole this seemed to be the case, perhaps reflecting the differential skills inherent in the assessment centre: ‘I found that it’s been the most encouraging that when I want to say something make a contribution, that not only will they listen to it but usually it’s acted on. And that’s quite encouraging.’ We were repeatedly told that there was close adherence to the competency approach: 65 ‘Virtually 100%. I think . . . I think of all the things that we have been taught to do, of all the things, the important thing is stick to the competences because only by the competences and the evidence will you know whether they’ve been demonstrated.’ Although there was also evidence of assessors’ examining the form sensitively informed by diversity: ‘The competition is opened, they’ve got to get their forms in and they get a huge wad of papers. And for most of them, they are busy practitioners, scribble out their forms and send it off. And I suspect if they read the information it’s cursorily at best. Now you might say “Well, if they are not prepared to put more effort in then quite frankly they should not be appointed”. That’s fine if you want to take that view. On the other hand if you are keen to appoint judges from a broader background then I think you’ve got to look in on that.’ There was a general view that the competency approach may disadvantage lawyers with particular specialisms, e.g. probate, conveyancing which had little to do with the courts: ‘I think that they struggle to pick out life-time experiences which demonstrate showing for example authority and managing self which is a very difficult concept to explain to people.’ This is something we return to following an analysis of the interview material. Life experiences are an important aspect of diversity which enables relevant competences to be demonstrated. We were told that life experiences are often woven into the competence evidence provided in the self assessment: ‘it can be with family, an organisation, a charity that you run or social, anything and sometimes you do get very good examples of someone who has; I can’t think of one off-hand, but very good examples of life skills which are accepted as evidence of the competency.’ This should be considered alongside our analysis of interviewees’ experience of the interview. What we also gleaned was that whilst applicants may be encouraged to use non-professional experience, this might be treated in different ways by sifters. Most concerning was that such experiences might be valued if they were ‘over and above’ the day job: ‘Well, it’s fine if it’s an add-on but if they see it as their life’s work and central then I would say it is not thought of as being of the same level. It’s not dismissed as being irrelevant but there is this issue about yes, but it’s not comparable with somebody who is a high-flying and adored barrister in a £500,000 a year fee earning chambers.’ There was a sense among assessors that applicants did not always engage with the criteria of the competence based approach or that it was particularly 66 difficult to make relative comparisons with people of different professional backgrounds: ‘But the trouble was a lot of them were not engaging with the criteria anyway. So that the whole question, of how credible self assessment was, was more to the question.’ ‘And personally I think there are some competencies that it’s not really relevant or fair to sift on because the candidates are just not comparable . . . Managing the workload is one, which stands out a mile for me, where depending on your background and experience in the job you do out there, you couldn’t possibly hope to be competing on a level playing field.’ ‘the difference between barristers and solicitors, I mean, if somebody is a self-employed solicitor whose whole life in practice has been doing one particular type of work and it’s never brought them into any other area and the judge on the panel happens to be a barrister whose whole experience is different, they can be very dismissive of the examples in the form.’ ‘when you get your matrix you can see the good ones because they’ll be running 4s and 5s across the board. The poor ones generally speaking will do okay in the interview unless they’re really hopeless but then the real test is - the real test is the role play.’ ‘You’ll find a Barrister who has on his feet experience who will be very, very good at role play and who will be very, very good at interview. Solicitors who haven’t had advocacy experience do tend to struggle with the role play and be down-right boring in the interview.’ Some fundamental issues were raised about the sift in the overall marking profile. This is well expressed by the following assessor: ‘Well, my own personal view on this is that when it came to the matrix at the end of the assessment centre you would come out with an average for the marks for the various competencies. You would then take in the sift panel mark and end up with a final mark. And my view was that the sift panel mark was too, uhm, weighty. Because if you think about it, if you are averaging six marks to come out with an average for the assessment centre and then you take the sift panel mark, that does mean sometimes that a candidate who was below the line on the assessment centre gets through because you are only taking one line. Let’s suppose that you’ve got a line of threes in the assessment centre for the various competencies and you’ve got a four for the sift panel, one mark of four then has the effect of increasing the three whereas if you took the six threes and one four, you would probably end up with a three.’ The importance of this becomes clear when we consider the interview experiences. However, we should state at this stage it may be an matter of 67 concern that a) the sift is rated to produce the shortlist of invitees to the assessment centre and b) the interview is often shaped around the competences identified in the application form and then rated again. The above quotation reflects the likely effect of this and points to the potential for elements of ‘double-counting’ in the process. Now our concern is with diversity. If it is the case that certain experiences may be valued less at sift, and this is replicated in the interview, this could be a serious issue from a diversity perspective but also from a more general perspective. 6.3 Recommendations on the Sift • • • Consider whether managing workload continues as a competence. Use the sift mark to determine the outcome of the sift process only Where the applicant does not appear to have met the competencies on the application form and the sift panel decide that s/he should be invited to the assessment centre, the reason for this decision must always be clearly stated. 68 7. CONSULTEE PROCESS 7.1 Documentation 7.1.1. Guide for Sifters - DDJ Competition These notes state that evidence from consultees should be considered carefully. The Sift panel is asked to rate the evidence against each competence from all consultees on the same rating scale of 1-5 taking into account all the evidence. The advice could be presented in a clearer form. There seems to be dual assessment being asked of the sifters; i.e. the candidate is being assessed through the consultation process, but the consultee is also being assessed. We have some concern that the sifters need to be given clear guidelines so that a consultee who does not fulfil the requirements of the consultation process does not in effect jeopardise the chances of an individual being shortlisted. 7.1.2 Guide for Sifters – Recorders In this guide it is recognised that the quality of the evidence from consultees varies enormously. Sifters are reminded that consultees’ reports should be supported by evidence. Sifters are warned that applicants who suffer, or may suffer, from ‘limited visibility’ i.e. their practice or position limits their visibility to the consultation community and judges in particular. The sift panel should consider carefully before rejecting a candidate on the grounds of insufficient evidence to demonstrate the competences in such cases; if this is a factor that has been taken into account, this should be noted on the overall decision form. 7.1.3 Review of Consultees/Assessors’ Responses We examined all the consultee/assessor responses for the people we interviewed. The DDJ consultees are constrained by a closed competency approach questionnaire with limited space for personal comments. More flexibility is offered to Recorder consultees. Our concern is not to comment on the overall quality of the feedback of the consultees, but to focus on the diversity aspects. Most of the consultees did not demonstrate overt sexist or racist attitudes to the applicants. However, there were sufficient comments which we felt were inappropriate, patronising, sexist and racist for us to comment. We give below an indication of the comments in question and the difficulty of ascribing evaluative comments to them: ‘She is a devoted mother . . . (could be seen as discriminatory) and Displays a real sympathy for parents and children caught up in family disputes.’ Here the different experience of being a mother was used to demonstrate competences in the skills of handling family cases. Other cases were more 69 clearly sexist in their approach ‘if beauty was the sole criterion, you would have to look no further’. On the whole, assessors mostly stuck closely to the competence approach, however, we do identify some concerns from a diversity perspective. Assessors tended to be critical of some candidates who adopted a personal rather than legalistic approach to the application form. It is essential that candidates are warned that such an approach, whilst valuing diverse experiences should be couched in legalistic terms, if this is what is required. We noted on a number of occasions that the potentially positive aspects of candidates’ diversity experiences set out in the application form may not always be valued in the assessment. By illustration, good examples of active work against racism and scenarios dealing with homophobic behaviour in court were not picked up. We say this in the context of other less strong examples being attributed weight. However, we also noted examples where there was a fear that a candidate may be too middle class in approach for some clients. We did not notice such a statement in relation to any men. We were pleased to note that a number of candidates were described as having potential and given advice as to how they might reach their potential. Work shadowing was an important method. 7.1.4 Recommendations • • That the documentary information is absolutely clear how personal examples should be presented and written in plain English. That some consistency of approach be adopted in handling the diversity aspects presented in the application form. 7.2 Assessors’ perspectives on the Consultation Process The assessors interviewed were asked about their views on the consultation process. We received many critical comments on this process. These included comments on the position in the selection process and the quality of the consultees’ reports. We give below some indication of the nature of these comments. It was evident that despite the clear instructions to consultees, it was not possible to control the consistency of the consultee’s reports. As an assessor who had also acted as a consultee stated in relation to the competency approach: ‘Oh we’re very much encouraged to do so now, rather than generalisations. For example if a candidate has appeared in front of us as a judge then you’re expected to sort of specify their professional conduct of that case and highlight that and have an actual example of why you’re saying they’re highly rated or not very highly rated so it is [I find] it’s very much evidence based rather than wishy, washy generalisation.’ 70 Despite this encouragement, there was clearly a variability of practice: ‘Well, there we’ve got a real problem. Because what the consultees do in the privacy of their own rooms making these assessments is anybody’s guess really. I only know what we get back. Deputy District Judges you really only get the nominated consultees. You don’t get the sort of independent, so-called independent judiciary commenting.’ When asked how likely are the assessors to use the evidence based approach, we received the following reply: ‘Very unlikely, very unlikely because they don’t understand the process; that’s the problem.’ ‘Yes, yes. For my own part I think the consultation process is nigh on useless, not a [ ] at all because if someone is picking 5 referees who are they going to ask. They are going to ask 5 people who know them. The 5 people who know them are going to write at worse – at best – at worse a middle lie. At best they’re going to over rate the pudding. The references you really read are the damning references because you think well this bloke knows the applicant. He’s put down as a partner or colleague or someone in another firm and the man is honest enough to come up with this applicant’s shortcomings. So you read those very seriously whereas the praise you tend to think well it’s tinged with well we know him he’s alright.’ Notwithstanding the above, we wanted to understand how important the consultee process was in practice. Some assessors firmly stated its importance: ‘Oh quite, once they are there, they seem to play an enormous part, whether they should –.’ ‘it is, it is important the consultation process.’ This seems to be an inefficient and inappropriate system that could advantage some and disadvantage others. We also understand that the system has wide support among the judiciary. When we asked about the ordering of the consultation process, we received contradictory responses: ‘No, I have always said that you should provide, well, if you can achieve this, excellent guidance to the applicants on how to self-assess against the competencies and that the sift should be done on the selfassessment and then you either consult at that point, before interview, or, better still, the self-assessment gets them through to the assessment centre, they go through the assessment centre process, they create a merit list and then you consult on the people you are minded to appoint.’ 71 ‘I could certainly see advantages in that because even some of the candidates who have come through the process that I myself experienced for example, don’t necessarily appear in Court very much, they do a lot of advice and paperwork and have conferences with the clients, have meetings with their clients but don’t actually appear in front of judges very regularly and so therefore when they have a low profile in that sense its quite difficult for them to find appropriate [consultees].’ Judicial consultees came under fire: ‘So I’d do away with judicial consultees frankly and I’d just consult as you would, take up references, when you were at the point at which you were minded to recommend them. That would be my – That would make the process so much speedier too.’ We also sought assessors’ views on the possible gender and racist stereotyping that might emerge in the consultation process. We were also conscious that some of our assessors may be asked to be consultees. For some, they were not aware of any such stereotyping. Others were not so sure corroborating the findings from section 7.1.3: ‘I think sometimes, sometimes male consultees as of female performance tend to be on the condescending side. . . Yes, there is a some tendency there, yes.’ 7.3 Applicants The consultation process elicited a wide range of responses. There is little doubt that the consultation process needs to be set in the wider context of references. It is the case that it is extremely rare for references to be taken prior to the shortlisting process. Indeed it is often seen as good practice for referees’ reports to be used only when the selection process has taken place. Arguably, taking references at the sift stage could introduce elements of unlawful direct or indirect discriminatory influences. As described in Section 5, there are different practices for the two competitions, although we were not convinced there was a justification for this nor whether there was consistency in practice. 7.3.1 Women Predictably, women and men reflected some of the same concerns and views. When asked, women were more likely to be in favour of the consultee process taking place at the sift stage: I am sure it had a positive influence. I am sure they said good things about me. You have to let people know you are going to so I think it had a positive impact. I am not lacking in confidence, I am not as confident as some people that is why I think it is good because I think they would have said more positive things about me than I would have said about myself, so yes it helped.’ 72 ‘I have a personal view about that and I think that if you’re applying for a job as responsible as that of a Judge then there should be people that you could put forward. Three is not a lot of people really to put forward who can vouch for you as a person and I think that if you can’t forward even 3 people then that does say something about you. That’s my personal view.’ ‘You want the opportunity to demonstrate your strengths.’ ‘Consultees’ reports should definitely be gathered before someone goes forward.’ Interestingly, there seems to be no link between success at sift and views on the consultee process. Applicants’ views may be contingent on what they think consultees will say or what they know they have said. For example, the following woman had received feedback therefore could say: ‘I think it’s quite clear it had a positive influence.’ ‘you’ve got to be able to speak to somebody who’s got some idea of how I work and that’s going to be largely judges and possibly other members of the profession so I think it’s very difficult, but there are other people. Witness support will tell you what I’m like with witnesses, ushers will tell you that I’m polite and courteous to everybody, so it isn’t just the judiciary, there are other members of staff in the building who can give an idea as to whether or not I am courteous.’ The above quotation is important since by implication she is stating that there are many possible consultees who may not fall in the high status groups normally expected. The following two quotations reflect some confidence and trust in the consultees’ evaluations which was not shared by all groups: ‘Well, it may be very unfashionable, but I’m afraid I’m all for it because I think often we- often we are not good assessors of ourselves. Other people are in a much better position to know how well you perform and how capable you are of doing a particular job.’ ‘I think that’s the right way to do it, I do really because, after all you are asking people who are watching the applicants day in, day out, or in whatever sphere. Really they will be forming opinions, you know, what I think of me might be very different to what somebody else thinks of me and you get different perspectives and, truthful perspectives and I think that should go towards my application. I was happy to know that that was taking place.’ A number of applicants were in favour of the reports being gathered prior to the sift, but also they voiced some reservations. ‘Well I think there are two problems to it. First of all you can choose your six best pals and you can say to them this is what I want you to say 73 about me and I don’t know how many people do that but all I did was phone up six people who I thought could deal with different areas of my work and said would you be prepared to do it? And I don’t know what they said about me other than the fact that I’m told how many 5’s I got and how many 4’s I got.’ However, there were equally strong views against an early consultation process. ‘Negative, that’s what I’m just saying because you haven’t seen the person, and so it will be negative in the sense that you’re making a decision about someone based on potentially what someone else has said without seeing the person. That doesn’t make sense. You would never go for a job. Nobody would apply for a job well I hope this doesn’t happen you wouldn’t apply for a job and then not interview the person and then go directly to the referees.’ ‘I’m not sure there's a bias in favour of men but probably a bit biased in favour of men, [ …. ] of course you know what you’re doing is you’re consulting with people who used to be at such and such chambers, low and behold somebody else from such and such chambers is now applying . . .’ Some reflected concern about the inconvenience to the consultees and the time demands on them: ‘I probably favour it being done after the assessment centre simply because if you want to make multiple applications, it’s quite a hefty form as I understand for the referees to fill in and you are more or less going to be using the same people over again.’ One issue that was particularly emphasised was the automatic consultation process for the Recorder competition. This view was reflected by successful and unsuccessful candidates, for example: ‘The other part of consultation process is the business about the automatic consultees, a list of people many of whom I of course have never heard of because I don’t appear in those courts and in respect of the family there’s three that I appear in front of and they may like me, they may not, I don’t know but the mere fact that they see me being the barrister in front of them, a lot of what I do will depend on the case I happen to have, the merits of my client’s approach. I’m not sure that that gives particularly good information about what the candidate is like as opposed to a whole bunch of circuit judges, magistrates, district judges how they see me. So I think it’s flawed but I guess that it’s better than just relying on people making up stories about themselves which is the alternative.’ ‘I just think it, it just smacks of the old soundings system and whether or like chambers or whether he’s a jolly good chap or not. And it just, you 74 know, does not happen in any other aspect of real life.’ ‘so I think in fact despite my own reservations about it, from my point of view it didn’t do me any harm and would certainly be neutral to positive, certainly not negative.’ ‘your automatic consultees would be obviously giving their opinion on perhaps a very limited knowledge of you and not an overall knowledge, perhaps one or two cases of seeing you and if you were brilliant well then you’re going to get a brilliant reference and if you’re not, you were not as good as you could have been, then it’s going to be held against you. I don’t like the automatic consultees at all.’ 7.3.2 Black and Minority Ethnic Applicants Black and Minority Ethnic candidates were considerably more circumspect about the consultation process. It is the case that the majority were against the process taking place at the sift stage. Some, even if they supported early consultation, reflected concerns at what they saw as the mystery around the process. Others reflected on the number of consultees required and on the social networks surrounding the consultation process: ‘I don’t really have a problem with it being taken into account ahead of time. But it’s really never been explained and I don’t understand why it’s different for different positions, it makes no sense to me at all. It’s one of the many mysteries.’ ‘That part of the process is not very transparent and you really don’t know what you’re up against.’ ‘I don’t fully understand whether it’s anonymised sifting so whether the people make a decision in the assessment centre are aware of this information when they see you. I don’t know how it works. Obviously if it’s collected in advance, in anticipation that you may be appointed to save time and then it’s only considered after the assessment centre, then fair enough, I can see why they do that.’ Access to consultees also figured large in this group’s response. The following sat as a specialist judge and felt access to consultees was difficult. Indeed this applicant is particularly interesting in the way networks were drawn on to seek advice. This advice was potentially misleading and would be contradicted by the guidance notes: ‘Where am I going to find consultees from and I spoke to one colleague who was a recorder who I've mentioned before and she said look you know you can’t use these commercial consultees and so yes it was very very difficult, very very difficult.’ Other applicants explicitly mentioned their backgrounds as a potential difficulty: 75 ‘I think it would be more difficult for people of a certain background to get references from the appropriate people, yes I think that’s correct. There could be bias, not deliberate but unconsciously, and fortunately I did not have that, but I could see where it could be a problem but for others.’ Others recognised the unpredictability of consultees, many were against an early consultation process: ‘Personally, I feel that shortlisting should be done on merit not on what anybody says about you. I don’t know whether the references played a part in the shortlisting process, if it did, that would be most unfortunate because at the end of the day what you want to do is be the best candidate available and if for example your reference was not that good, I don’t know if they are going to drop you or if your application was not that good and then you got a glowing reference whether that influences.’ ‘they’ve made an application, you see them and it’s at that point once you’ve done that, that what other people have to say about you then comes to the fore because then you don’t know whether somebody/one of your referees who you thought was going to give some positive response didn’t. You just don’t know and if that influences the application that’s not fair, I think. Well I don’t think it’s fair.’ The issue of visibility recurred and was invariably related to professional specialisms, which applicants felt intrinsically disadvantaged their chances of providing appropriate consultees: ‘One would only look at the type of referees put forward and everyone has their prejudices and judgmental values, depending on the individual who is carrying out the sift who may say well this chap’s got high court judges supporting him and this one’s got practitioners in her smaller high street firm and that obviously disadvantages you, disadvantage generally speaking one may not have access’ ‘we (legal specialist) don’t get it, we don’t get exposure and therefore no one knows us; and if it’s given heavy weighting then we’re disadvantaged.’ The lack of predictability of consultees’ responses was particularly evident in this group. Because they have lived in a context of potential or actual institutionalised racist contexts, it is inevitable that they will be more sceptical about the process: ‘Because I think it [the application form] gives you a chance to demonstrate on your own merit really and you don’t have that negative or positive influence. You know, you really don’t know what your consultees might say sometimes. So I really think it’s much better to do it under your own steam at that stage. Then, otherwise you are doing the same thing as before, you know, it’s the tap on your shoulder kind of thing and say “Let’s look at the consultees, never mind the application form”.’ 76 ‘the consultees may themselves be biased, so again yes, I can see the issues, but I personally don’t feel that I’ve been handicapped by that.’ Nevertheless, positive statements on the process were also reflected: ‘I expect it would have had a positive effect. [on me personally]’ ‘it is designed to have an objective view so I think that might be alright to have the sift before the interview.’ ‘Personally I think I would have the referees upfront . . .’ Again part of the support reflected the views in the above section that consultees will make supportive statements that the applicants feel unable to do. Consultees may have a perspective which the applicant may not have and may be able to be more effusive in the assessment of the applicant’s competences than the applicant may be: ‘And how they perceive you and your work and your capabilities and how you come across. You, you couldn’t possibly leave it to the person themselves ‘cos I think they can be woefully out.’ This group also raised the issue of the number of consultees, many arguing for a smaller number, as being easier to access, or a larger number to dilute the impact of a negative consultee: ‘there is too many of them. It is going to disadvantage people who have one job, stay in the job for many years and then possibly go on to another job, it’s going to limit the number of ex-employers, ex-bosses they can rely on as a referee.’ ‘I understand that you approach all the judges in the, in the circuit which you practise in is a good thing . . . and I think the more people you approach, the less likely you’re gonna have bias anyway I think.’ The following view reflected some concern at the strategy to increase the diversity of the judiciary fearing that by implication minority ethnic men may lose out. ‘There is a lot of pressure on the DCA you know that they have to appoint people of diverse backgrounds and I think that in the hurry to appoint people of diverse backgrounds, they are not selecting the appropriate candidates from my observation. I think they in essence try to kill two birds with one stone because there is a lot of pressure on them that they haven’t got a lot of female judges, they haven’t got a lot of black judges, they haven’t got a lot of Asian judges and I think that they have a lot of pressure on their shoulders as I say to kill two birds with one stone’ 77 Others remarked on their outsider status in the social networks associated with the judiciary seeing this as a major barrier for them: ‘because we don’t get out there, there’s always this ‘yes Mr S, appears before Judge H. or Judge S. all the time and they know each other, they go out drinking, well he’s one of the closest friends this side of the circuit of course, you know the old saying, good egg and therefore if you go up and then you get the old boy network argument coming up again.’ Others recognised that for them such networks were well formed and could easily be drawn upon. Equally, they acknowledged this is not the case for all applicants: ‘I was quite clear in who I wanted to put down and I didn’t have any problems finding consultees because I have been around for a long time and I have had a judicial position and I had friends that are district judges and I went to the district judge at my local court and they were all very helpful and supportive so I personally didn’t find any difficulty in putting down consultees but I can see how that would be unfair with others.’ 7.3.3 White Men White men were generally supportive of the process and its timing. Many recognised the potential problems of the consultee process for others in different circumstances to themselves, (recognising it could be a ‘stumbling block’), however, they did not claim a negative impact for themselves. Interestingly, it was the practical issues that they tended to raise as well as also having concern with the automatic consultees. For some there was little empathy with those who might have difficulty getting consultees: ‘Well I think it’s positive, I was very pleased with my consultees.’ ‘that might be an issue for some individuals, but one would hope that by the time one makes this application, you would have experience with the sort of people that you would hope would be consultees. It may be that uhm, I mean obviously you need to have consultees and that needs to be part of the process, I mean the sifting process by which people are looked. I think if you have problems getting consultees, that may or it may not be, but it may be a reflection of your either your experience or your standing in your particular field.’ Whereas the following applicant demonstrated greater empathy for others in different circumstances: ‘I can foresee that if I were in a different firm with a different background and younger I might have difficulty and I wouldn’t like to be compared unfavourably just because I had one person who said I was excellent as opposed to six people.’ 78 ‘my six referees, I can’t get used to them being called consultees. Yeah, it’s people who know your work and you personally and it’s essential that people know a fair bit about you.’ The automatic consultees were raised as an issue with a suggestion that the consultees should be widened: ‘I do have a problem with the list of automatic consultees because I think if you want criminal advocates for a criminal job, fine, but if you really are going to look for dual applicants, then you should be looking at tribunal chairman, district judges who ever they may be.’ The inconvenience to the consultees was raised again. It was also the case that applicants feared the potentially negative impact on the applicants’ future professional networks: ‘I think it’s a bit of an imposition asking people, the candidate that is, to name people at an early stage. I also think it’s an imposition to approach people at an early stage. I don’t know exactly to what use references are put in the sifting process but I personally felt more comfortable if people had been asked after the interview when there was a greater degree of certainty I had passed the final hurdle. I think as a barrister you don’t want solicitors to know too many times you are applying, because they will think you are about to leave the Bar in ten years time or whatever it may be and there is no real point forging or making any close links with you.’ ‘I also think that the forms, having read them through, are quite time consuming for the people filling them in. If they are done properly and I am sure they are, I have asked people and they say they are. I also feel that is a bit of an imposition, to ask people at an early stage to fill in that time consuming form if there is not a degree of certainty that they can be appointed.’ 7.3.4 Conclusions There is a marked difference between the groups, but particularly between the black and minority ethnic candidates and the other two groups. It is clear that this group is much more aware of the subjectivity that can creep into the consultation process. They are aware of the institutionalised nature of racism in Britain and the consultation process is the area where it is most likely to manifest itself. Notwithstanding the supportive evidence of the early consultation process, we would favour a system where the shortlisting is not influenced by the consultation process. We further noted that many applicants were not immediately in tune with the term ‘consultee’ or ‘consultation process’. Frequently, this question needed to be repeated during the interviews. We feel that this may add to the mystery around the process and that some demystification of the language should take place to increase transparency. This is likely to resonate immediately with those who are not in the dominant networks of the judiciary. 79 7.3.5 Recommendations • • • • • • • that the guidance notes are more clearly drafted to ensure that that here is no ambiguity of interpretation that candidates are not disadvantaged by consultees who have not complied with the requirements of the consultation process. that consultees’ views are not sought until a candidate has been shortlisted. that consultees’ views are not quantified in the main assessment centre ranking. that references are not considered until an applicant has reached the assessment centre. that the language around consultation is changed from ‘consultation’ and ‘consultee’ to reference and referee. 80 8. THE ASSESSMENT CENTRE – DOCUMENTATION The Guidance notes advise candidates that they will be tested by trained assessors and that they will take part in a range of tests, relevant to the skills required to do the job, in order to assess suitability. Applicants are advised that they are not expected to have a technical or detailed knowledge of the post for which they are applying, although they are expected to demonstrate a basic knowledge of the jurisdiction. It is clearly stated that the Secretary of State and Lord Chancellor needs to be satisfied that an applicant has the capacity to cope with the relevant jurisdiction. ‘Applicants should therefore expect questions and exercises which will assist the assessors in finding out whether they have sound instincts and the right approach to the sort of problems they might face’. These notes are crucial to the assessment centre approach. They are designed to prepare people for the assessment centre itself. Our initial view from analysing the early documentation is that this information was rather vague and obscure. Although it was clear that a detailed note on the jurisdiction of a recorder was in part C. We nevertheless sought the opinions of applicants and assessors on this. The amount of information was extensive, but a general observation is that the information is not fully linked with key pieces of legislation and civil service good practice guidelines. We scrutinised the documentation for each competition. Candidates are given advance guidance explaining the Assessment Centre – its rationale, objectives and how it works. They are told the areas of law that the technical paper covers. This offers an opportunity for candidates to understand the purposes and processes of the Assessment Centre and to prepare themselves for it in a technical and psychological sense. The first activity of the day – the candidate Assessment Centre induction – explains what will happen during the day. Candidates are offered refreshments, use of the Internet, newspapers, etc. It appears that every effort is made to explain the day and put candidates at their ease and to make them comfortable. This should help candidates perform to the best of their ability. 8.1. Assessment Centre Documentation 8.1.1 The Interview. Clear information is given to candidates about how the interview will be conducted and what it will cover. Interviewers are given a list of possible 81 questions apparently under four competencies (although only questions for two competencies were in the pack). There seem to be a lot of possible questions in the information for interviewers that the interview could cover in 45 minutes. Can this many questions be answered in sufficient depth in the time available? There appears to be a close relationship between the application form and the interview. Are candidates expected to think of new examples or expand on examples given in their application form – this does not seem to be made clear either to candidates or to assessors. Under the ‘building positive relationships’ competence, the interviewer is recommended to ask two questions from a possible five. How do/should interviewers decide which questions to ask and how are the answers then compared across candidates? Are all candidates at a particular Assessment Centre asked the same questions? 8.1.2 Role Play - Recorder The documentation surrounding the role plays was scrutinised and we would make the following points. Instructions to candidates for the written exercises are clear. In particular, there are several reminders of the time constraints. Each role play tests a particular area of law. Questions are designed to test particular areas of law. This raises a number of questions. Is there enough time for those previously unfamiliar with the particular areas? Does the paper advantage one type of legal practitioner over another? The cases appear to be gender and culturally neutral. The approach is encouraging to candidates. One of the role plays involving a Muslim defendant offers an opportunity to evaluate sensitivity to cultural diversity, while the other involving a sex offence offers an opportunity to evaluate sensitivity to a gender issue. The role play assessor guide outlines in some detail the assessor’s role in managing the process and assessing the competencies with examples of how candidates might demonstrate evidence of the competencies. 8.1.3 Role Play - DDJ The role play is a very complex and well designed exercise. However, the information is brief and is hardly indicative of the content. However, the information does not fully describe the criteria against which the candidates will be judged. Providing further information would alleviate some frustration that may be associated with this brief guideline. It could also allow for the candidates to display their full potential and range of skills, which could improve the performance of members of the underrepresented groups. 82 8.1.4 The Assessor Guide. - Recorder The assessor guide for the written exercises contains appropriate reminders of the role of the assessor, in particular that the ‘written exercise is not a test of legal knowledge’. Examples are given of how the competencies might be demonstrated. This approach should ensure consistency and fairness across the candidates. 8.1.5 The Assessor Guide - DDJ The equal opportunities component of the guidelines for assessors explicitly states commitment to equality and diversity for only a narrow band of categories, including gender and ethnicity. Indeed, the reference to sexual orientation is offensive and fails to capture the essence of legal and social changes in the last four years in the UK. It is also not clear how such equality will be achieved and what objective and concrete measures will be taken. Another interesting point is the suggestion that the assessment centres will ensure objectivity. However, it is not spelt out how objectivity will be achieved, monitored and measured. Objectivity is a very important construct for equality and diversity. Therefore, this promise needs to be elaborated further. The interview guidelines clearly mark hypothetical examples offered by the candidates at ‘2’, evidence insufficiently demonstrated’. There is more emphasis placed on real experience. This will indirectly discriminate against candidates on various grounds as it fails to recognise potential, and overstates the case for experience. The overall assessment system is well structured. Provided that the other assessor guidelines are improved, the system will serve well to equality and diversity. 8.1.6 - The Technical Paper.- Recorder This approach of using initials in the case studies avoids the possibility of lapsing into gender and race stereotypes. The technical paper marking guide for assessors is fairly directive and sets out the criteria for three different levels of achievement – 3-5 (3 being competent). This should help ensure consistency and fairness across the candidates and between assessors. 8.1.7 Technical Paper - DDJ Technical paper is a multiple choice paper and this is an objective way in which knowledge based competences can be measured. One of the main concerns is the use of candidate name in the paper. Anonymising the paper 83 by asking for a candidate number rather than candidate name could improve its credibility, even though this is not an essential measure for multiple choice papers. 8.1.8 Overall comments. It is clear from the documentation that there is considerable effort to ensure transparency, fairness and consistency in the Assessment Centre procedures and processes thereby attempting to remove subjectivity. A ‘candidate matrix’ is used by assessors to record their rating of candidates’ performance in each exercise against the competencies, from which an overall rating can be calculated. This method should ensure consistent approach to rating candidates. It also provides a convenient and consistent way of summarising candidates’ performance for record-keeping purposes and of providing feedback to candidates. 8.1.9 Panel Assessment Panel assessment contains extensive review of the assessment of the panels and it is appropriate in terms of equality issues. 8.2. Recommendations • that there should be great clarity on the legal knowledge necessary for the assessment centre. • • that the written papers be anonymised • • that more detailed guidelines for role plays be provided particularly in terms of objectives, and the criteria by which the exercise will be assessed. • • That a wider range of categories be included that will be protected against direct and indirect forms of discrimination. • Provide detailed guidelines on the role of assessors in ensuring equality of opportunity for all. • • Objectivity should be defined, its measures and monitoring mechanisms • • Appeal structures should be identified. • • Rather than the nature of the example (real versus assertion), the quality of the detail of the example offered by the candidates should be measured. 84 9. THE ASSESSMENT CENTRE – THE INTERVIEW The assessment centres are held in the DCA offices in London. There is ground floor suite of rooms that are used for the purpose. They are pleasant, modern rooms with good sound-proofing. They have good accessibility for candidates with physical disabilities. 9.1 Assessors It should be noted that the assessors carried out different roles in the assessment centre. Therefore not all assessors had experience of all parts of the assessment centre. Some undertook interviewing and marked papers, others observed role plays. Assessors were asked about the nature of questions in the interviews. In particular we sought to find out if there were any questions that were designed to elicit candidates’ attitudes to diversity, that tended to elicit different responses from men and women, BME applicants, barristers and solicitors, and provision for candidates with disabilities. The assessors provided frank responses to our questioning allowing us to tease out the key diversity issues: ‘Usually someone from the Department will raise the issue of diversity directly raise it. They always do that on every interview and it’s surprising how many people have never thought about diversity. How many people really don’t know what diversity means? Of candidates, 50 or 60% will give very poor answers to diversity because they’d never thought about it and of course the comeback on that is well as a District Judge or a Deputy District Judge you’re going to have to deal with all sorts. How will your approach vary and very few seem to get their heads round a decent answer.’ As we shall see in the next section, this was not the experience of all applicants. We were also given illustrations of sexist behaviour patterns: ‘My impression is any rate, and my experience is that they [the applicants], especially if there is a man and a woman on the panel, they will address all their comments to the man really.’ Despite the interview guide and the concern to avoid hypothetical questions, the assessors reported considerable flexibility in the nature of the questions they asked: ‘You can put, or you used to be able to put, they rather frown on it now, you used to be able to put some hypothetical circumstances to them which sometimes elicited views but there are many, there are many questions you will have somewhere if you’ve got all the papers, you’ve 85 got some sort of suggested questions. Now they’re very good suggested questions too. I prefer to be rather more flexible myself in the questions. But you can start by a question that may be over there from the point that you’re trying to get to but ultimately you’ve got there and that’s an art of interviewing or really talking to somebody.’ A key part of the interview is to test the required competences. Our interest was the competencies relating to diversity. We were told: ‘there are two particular competencies, communicating and building positive relationships. And we have asked questions relating to, have you had in a professional or a private sense experience of dealing with people who may not be of the same social background or sort of grouping as yourself? Then that usually opens them up and you can start exploring it a bit.’ Such questions are well meaning and open. Such a question allows a white person to demonstrate their knowledge of other groups. Whereas for a black and minority ethnic candidate, it denies them the opportunity to demonstrate the knowledge and experience of their own ethnic group. Indeed our scrutiny of the documentation suggested that white candidates who demonstrated knowledge of diverse groups tended to be rewarded more than black and minority ethnic candidates who had clear experience of working for black groups and against racism. Another example of a question used was: ‘Some organisations and institutions have been labelled institutionally racist, do you think that label would apply to the legal profession. (They) usually take a gulp at that. But it’s a relevant question. And then whichever way they play it, well, what’s your experience, why do you say that? Sometimes they bat safe and say “Oh, no, no, not from my experience”. And then I will say “Well, I understand that the Law Society itself acknowledges that that’s a problem, do you not think that maybe outside of your chambers these kinds of issues may arise”. And of course many women solicitors and indeed barristers have taken chambers and senior barristers to court for sex discrimination and so on which they are bound to be aware of. So you can get around and explore then.’ This question with its associated probing does allow the candidate to demonstrate their knowledge of the issues around racism and sexism in the law profession generally, the judiciary and at the level of their own organisations. 9.1.1 Women With regard to questions which may advantage/disadvantage women, we noted that assessors acknowledged the caring responsibilities still mostly 86 taken by women in Britain and the different networks of which women may be a part: ‘I think that you refer differently to when they are married. Because of you know, that they have got a family, and if they are working mothers, for example, how they fit in their time and so on, so there is bound to be slightly different approaches from a man, I suppose.’ ‘of course yes I dare say that women are more likely to discuss people they meet on the school run than men but the questions are designed to bring out information from the individual and I can’t, I can’t immediately think of any occasion where its mattered in any way because they’re male or female.’ ‘In building relationships and I find that, sometimes you get a better response from women candidates particularly when you ask, one of the questions that I often ask is that members of the judiciary have sometimes been criticised for being too distant, do you agree with that? Then the follow up for that could well be what steps do you take to ensure that you keep in touch with people. Usually then women come out much better and that may well be through school, with children, social groupings, whatever, they may well have better contacts and interaction with people in the community often than what the men have. But sometimes as we start to probe a bit on that, that usually happens. And I am usually conscious of that and if that is the case, I try to get them off that and move them on somewhere else because that’s advantaging them.’ ‘Trying to get them off that’ because it could benefit them is a strange concept. The idea of the interview is to allow people to demonstrate their competences for a judicial appointment. Would this strategy be used on a less gendered topic? Assessors also recounted examples of people who had taken extensive steps to communicate to a diverse group. The following story is particularly impressive, although was not typical of our interviewees. This story is also illustrative of how action that is taken to enhance a person’s ability to communicate with clients may have unanticipated beneficial consequences: ‘And I was, well, the whole panel was well, she has gone beyond the lines of duty, she wasn’t just playing to the public, she was from Handsworth [substitution for real location], what she did because I will never forget it, she had a Black client in a public brawl case who was mute and she noticed that the guardian would not talk to him, she was always talking to the signer, and she thought to herself “Am I doing that in my interviews with him, am I talking to the signer?” And she learned sign language so that she could not only in her interviews but in the court ask her client questions so that it was apparent to everyone you talk to him. And I went, what an example to give, you see. But the good side of that was because she said to me “Of course as a result, my practice, 87 because I now have people who come to me who are deaf as I can sign”.’ Assessor sensitivity to diversity is not a given and should not be taken for granted. However, it is evident that such sensitivity can develop and grow with greater awareness and through experience: ‘I think (questions) they advantage women, I think women have normally been trying to juggle these, this is what I mean, I can see a system that unless the middle class white male wakes up to this there will be fewer middle class judges. Now I might be wrong, it might be that you said to me “If you look at the statistics, there are some 80% are white middle class” but all I say was bright young women who would want to rise, who wanted to do something. And if you did ask, I don’t know how much they have given you of the survey, certainly two years ago on the sheet that they publish with all the results the first half of the first page which are the highest, the majority were all women. But you see I have always thought that that a good woman . . .’ There is evidence in this quote that from this assessor’s perspective, women make up some of the best candidates and will do so in the future. We are reminded here of the concern to increase the diversity of the judiciary without lowering standards – rather the evidence suggests that increasing diversity will raise standards. We shall return to this point later. Women will also challenge some of the entrenched social networks particularly strong at the bar: ‘It’s [the bar] very clubbable. Uhm, I wasn’t so aware of it with the women. To be honest the women I interviewed were from quite different backgrounds. So I interviewed some who were already holders of judicial office. I interviewed some quite high-powered women in other organisations, like Police Complaints. Uhm, and uhm, academics.’ By implication, women are not just denting the traditional occupational segregation at the bar, they are bringing different experiences from the traditional ‘clubbable’ male. Thus by appointing more women, there would be a widening of the traditional networks and perhaps a weakening of the ‘old boys’ network’ so often associated with the judiciary 9.1.2 Black and minority ethnic applicants We sensed that the assessors had more problems answering the questions with regard to black and minority ethnic candidates. It was not clear how some of the examples used were linked to the competences. For example, we wondered what competence was being tested by questions on racial disturbances in a particular area. Further, some assessors seemed to have preconceived ideas about the roles black and minority ethnic groups play in the community. There seemed to be an assumption that their ethnicity would overrule the middle class status of their profession, hence: 88 ‘Well, again, if you ask them what they are doing in their community because, I think of an Asian candidate, telling me he was a member of Rotary wasn’t actually what I was looking for, do you follow me.’ Are white people asked these questions? What competence is being sought from such questions. Are we seeing a differential questioning for different candidates. In other words, in some cases we are seeing combinations of the deficit model and the difference model working in conjunction. This section again implicitly raises the issue of the lack of black and minority ethnic assessors. 9.1.3 Solicitors and Barristers There were mixed views on the advantage gained by professional specialism. For example, ‘I think possibly the amount of knowledge might favour a barrister because they are doing much more research than a solicitor would do.’ Yet it seems that barristers are more likely to have difficulty with the question on diversity than solicitors: ‘Barristers by and large you have to probe them a bit more, a bit more vigorously because solicitors generally do have particularly, well anywhere, anywhere, they have a broad swathe of clients. They have the non contentious, the non adversarial, the non litigious clients and they have the litigious clients and they will see many of them. Some barristers particularly barristers . . . are not going to see anybody else [other] than boffins from Oxbridge and therefore you have to tease at the margins of how they are aware of what goes on in society and what their connections are.’ However, in general, it is felt that: ‘But it does seem to me that those exercises will favour barristers. Now the only thing you could do is I think from the time, rather like the school exams, if you’ve got a child who has dyslexia or something, you allow more time and perhaps allow someone to assist, but as I said earlier, I don’t think it will work at the end of the day because from day one the Deputy has to keep up with the list, has to produce legible orders, has to be in control.’ This highlights a critical contradiction in the approach, which claims to build on potential. 9.1.4 Disability With regard to disability, we learnt about structural conditions in the courts that would make life very difficult and sometimes demeaning for a physically disabled person: 89 ‘And you may well find that in that area there is, there may be no courts that are accessible to that individual where he can actually go and sit without the gross indignity of being carried up a flight of stairs in front of the punters or worse carried into court and plonked down. That is just unacceptable. So I think the first thing that’s got to happen is there’s got to be a fundamental update on a lot of courts and then you can expect people to be able to move about in dignity however they are handicapped but that is the process, the process I do not believe the process discriminates but the practicalities do. ‘ ‘I don’t think we are out of the woods completely. I think we’ve still got work to do just like what’s supposed to be easily accessible, some are shall we say less accessible than others. I think we’ve still got some work to do. But I think the wheel has been turned and when you are dealing with a supertanker it takes a time to actually complete the change of direction.’ 9.1.5 Conclusion The interviews revealed different perceptions by sex, ethnicity and professional specialism. We should also recognise the social context that operates within the judiciary: ‘So that if you put it in another way, the judges have a vested interest in not having underperforming judges. Because it is going fall back on them. And believe you me, trying to sort out the mess caused by someone who has quite frankly not done the job properly, is very difficult because what you cannot do is to slag off that idiot judge who made that order.’ 9.1.6 Recommendations • New assessors should be selected on the basis of their understanding of sensitivity to diversity issues 9.2 Applicant perspectives on the interview 9.2.1 General perspectives Interviewees were asked a number of questions relating to their experiences and perceptions of the interview. The overall impression from all groups of candidates – women, black and minority ethnic and white males – was that the competency approach of the interviews and the highly structured format left little space for applicants to reveal more about themselves as people and their suitability for judicial appointment. Many applicants found the interview questions obscure and too abstract; some felt that the interview simply repeated the contents of the application form and therefore they could not quite understand its purpose. They felt it drew out neither strengths nor weaknesses adequately; one applicant described the interview as ‘dull’. As one applicant remarked: 90 ‘It’s not them interviewing me to find out what I’m like, it’s them finding out whether I can give the right answers or an answer that fits, that demonstrates the competence and that I find difficult.’ Regarding the conduct of the interview, there were a number of comments about the absence of verbal and non-verbal cues from the interviewers. One applicant described the interviewers as ‘deadpan’; another said ‘they gave nothing away’. This left most applicants unsure of how they had performed. There was very little reaction to the recording of interviews with only a couple of applicants remarking that they found this ‘off-putting’. The overwhelming majority of applicants felt that the interview was long enough and there were no reported disability issues. There were a number of areas where it is worth highlighting differences in perspectives according to gender and ethnicity. 9.2.2 Women applicants’ perspectives The vast majority of female applicants described the ambience of the interview as friendly and professional. Most had felt welcomed and comfortable. However, many also commented that the formal, structured nature of the interview made it a tough experience. Interviewees were asked what they felt the interview panel had most valued and while many said that they had no idea (because of the points made above), where interviewees had a view, they tended to believe that addressing diversity issues was positively received, for example: ‘Issues around diversity? The feeling that I got was that they were impressed by that. But if you look at the diversity of the panel, yeah, there should have been three; yes, there should have been a woman.’ The quote above reflects a more widely held view that the composition of the interview panel should be more diverse. (Some applicants had been interviewed by two men and others by one man and one woman.) Despite a widely held perception of a rigid interview format, there was considerable unevenness in the type of questions asked. Some applicants were explicitly asked ‘diversity questions’, while others were not: ‘And obviously it was a very mechanical because they had set questions. So they weren’t diverting too much. And I had no diversity questions at all. Which I had been warned about, you know, expect really difficult questions on diversity. I didn’t have one single question.’ The above quote reflects a widely held perception that diversity is seen as an important issue for the assessment centres and some female applicants had given thought to this and the kind of examples they might provide, prior to attending. The overwhelming view among women applicants was that there were no direct questions that disadvantaged them because of their sex or ethnicity. 91 However, some suggested that there might be more subtle lines of questioning that were trying to uncover views and experiences of diversity issues. For example: ‘There were obviously some questions that were looking to find a particular candidate with awareness of social problems and you did rather get the impression that if you lay claim to actually being close to them that was going to be actually better than just knowing or being informed.’ There was some hint that being able to demonstrate how one’s own life experiences were connected with diversity issues would be positively valued. However, a small number of women indicated that they felt that their life experiences – for example, time out of career to care for children – were not properly valued or understood by the interview panel. For example, some were troubled by being questioned about voluntary/community work, stating that their family responsibilities had meant that they had little time spare to involve themselves in extra activities. One woman gave the following response in answer to a question asking her whether she felt there were any inappropriate questions asked at the interview: ‘I don’t think there were really, oh other than, not questions as such I think, but probably the responses to answers if you’re talking about family. I mean I think it’s an important thing to bring up children. I think the experience you know it teaches you an awful lot – I get the impression that they don’t think that.’ Interviewees were asked whether they believed that the assessment centre approach might advantage one ethnic group vis à vis another. Most replied negatively and overall perceptions of women applicants of the assessment centre approach were positive, with most believing that it offered a more objective way of testing suitability for judicial appointment, for example: ‘Ultimately no, because you are not going to go forward to the post unless you pass the objective test. So you’re going to have candidates who can meet all the criteria to meet whatever judicial role they applied for.’ Further, many women felt that the rounded approach of the assessment centre (i.e. not depending solely on the interview) provided an opportunity for a broader range of people to demonstrate their suitability for judicial appointment: ‘I think the assessment centre approach is better because it, you know, somebody who, with a less middle class type background doesn’t do so well in my view doesn’t do so well in these interviews, But it doesn’t matter you are. If you’re going to be good at doing your job, you get the opportunity to demonstrate it in the other parts of the assessment day.’ 92 However, a small number offered more critical reflections. For example, responding to a question about whether the interview and the assessment centre approach advantages or disadvantages any particular group: ‘I think it might in certain respects. The people conducting the interview are white and middle classed to that extent yes I think. I think it would be better if they were a bit more sensitive’ ‘Well it absolutely shouldn’t do really. Because once you’re at the assessment centre you’re there to be assessed for what you are. I think you may well be disadvantaged at an earlier stage but if they want you at the assessment centre the answer to your question is no.’ The second quote above hints at the possibility of disadvantage occurring at the application and sift stage of the process. The quote below suggests the possibility of more subtle, potentially discriminatory processes built into the design of the assessment centre. ‘I don’t think so directly. I think the people who do best at the assessment centre are probably the criminal practitioners who are the fairly standard sort of time-honoured applicants for this kind of post. Now, most of them are white and male, so in that sense it would prefer them because they are more able to deal with particularly some of the academic issues and the role-playing, which I found terrifying. But, that issue apart, it was a pretty transparent experience. It wasn’t a very nice experience, but it was I think fair and to me, I think pretty transparent.’ Despite some criticism, the overall impression was that female applicants generally approved of the interview and assessment centre approach. 9.2.3 Black and minority ethnic applicants’ perspectives Most black and minority ethnic applicants described the interview as friendly and business-like. However, there were more negative comments about the experience than from women and white male applicants. For example, a small number used words such as ‘intimidating’, ‘hostile’ and ‘stressful’ to describe the ambience of the interview. Many felt that there should be greater diversity on the interview panel. There were few criticisms per se of the interview, but there was some unevenness in reported experiences and perceptions, particularly surrounding questioning on diversity issues. Some applicants felt that experience of diversity issues was valued at the interview, while others had expected to be questioned in this area, but in the event were not, which they found perplexing. Others were puzzled by a more explicit focus on diversity, for example: ‘I find it strange that I would even have to ask the person about diversity issues, you know I live it, I live the life. So I don’t criticize the question, it was part of the process, but I think it is unnecessary it’s like 93 asking someone who is in a wheelchair how they can relate to other people in wheelchairs, why on earth would you need to do that?’ While the interview was generally felt to be conducted in an objective and business-like manner, there was some perception by black and minority ethnic applicants of subtly discriminatory processes, for example: ‘I don’t think any of the questions were inappropriate. I think the tone was occasionally inappropriate and I don’t know if it was deliberately trying to be confrontational but I think it was slightly putting down, you know, so it wasn’t the questions that were inappropriate it was the tone.’ In response to questions on whether the assessment centre approach might advantage one ethnic group vis à vis another, most black and minority ethnic applicants felt that this was not the case. However, there were a small number of critical comments, for example: ‘I mean it’s quite an intimidating format. It was friendly as much as it could be and formal, certainly not hostile but obviously the more confident you are, the better you’re likely to perform and obviously we know that certain backgrounds of people are more confident, say if you’ve been to a private school for example, you’re more likely to approach it in a more confident manner. If you’re experienced in dealing with these situations, you’re going to be more confident. So in a sense the group of people I’ve identified earlier [white, middle class males] are more likely to have that experience and can cope with it and are more likely to perform better. So on the face of it no, but if you go beneath the surface then possibly yes.’ ‘Because I think that it would generally be people who aren’t from ethnic minority and from smaller practices where they would not have as much resources available to them or mentors and it would be difficult for them to prepare for the process than for someone who comes from a different background. So I don’t think it’s deliberate or intentional, I think it’s just because of the way it is approached.’ 9.2.4 White male applicants’ perspectives There was lesser variability of perception among white male applicants who all described the ambience of the interview as friendly and business-like. Some could see the potential for bias in the interview towards particular legal backgrounds. From the perspective of white male applicants there were few criticisms or problems with the assessment centre approach and some were very positive about its potential to increase diversity in the judiciary, for example: ‘The impression I got from start to finish was that every effort was being made to ensure (that is a subjective view) and coming from [someone] from my background but the impression I got was every effort was 94 being made to ensure that whatever ethnic background you came from that you were given a fair opportunity and that, and positively so.’ However, there was also some suggestion that the efforts to get a greater number of black and minority ethnic people into the judiciary might be at the expense of equally qualified and suitable white male applicants. There was some unevenness in the questioning on diversity issues. Some reported no such questions, while felt there was a clear signal that discussing diversity issues was positively valued: ‘I think perhaps I found that the interview seemed to flow better when we were perhaps touching on issues regarding diversity and that’s not assuming too much about the entire process but I really got the feeling that when we were talking about diversity that the conversation flowed more readily and that they seemed to be far more interested in what I was saying there.’ In addition, there were one or two examples of inappropriate questions, which, for reasons of confidentiality and in order to preserve the anonymity of interviewees, cannot be directly reported here. Although this was not a widespread problem, it is cause for concern. 9.2.5 Recommendations • • • • • Diversity training for assessors should be extended in order to increase sensitivity and awareness. In particular, examples of appropriate and inappropriate lines of questioning on diversity issues need to be discussed. Strenuous efforts should be made to appoint more women and black and minority assessors and to ensure that all interview panels are diverse. Provide clearer guidance to applicants on what will happen in the interview. Re-design the content and structure of the interview to avoid repetition of the contents of the application form. Require assessors to include ‘diversity questions’ in the interview for all applicants in order to be able to evaluate and compare sensitivity to diversity among applicants. 95 10. THE ASSESSMENT CENTRE – THE ROLE PLAYS 10.1 Assessors We sought to reveal whether the role plays advantaged one group over another. An assessor described to us what they were looking for in the role plays and another why role plays were an important contribution to the selection process: ‘Was he or she in charge of the court and the various problems that came up in the two role plays, the interrupting witness, the bolshie defendant, and so on. The documents that were or weren’t there. That was tested against an ability of the individual to think quickly, to rationally work out what to do in the given set of circumstances and is not gender biased at all.’ ‘But they do get exposed. That’s why I think that these role plays are very very good because they are a really useful addition to the whole assessment process.’ There was evidence that assessors may lean towards stereotypical positions, but in practice these were not necessarily acted upon in a negative way: ‘Quite often you get a complete surprise. For example a woman can be really interventionist, really assertive and you get a male candidate who is very sensitive, empathise, caring. What do you think, you haven’t got a stereotype, the woman can be really, no, no, can be really sharp and put down. I found that with them all, you can never predict by the sex of the candidate that that’s how they are going to play it. Not at all.’ ‘Again, a complete mixture of response. . . many are very very good, quite surprising really. Some of them really empathise. But you would expect that, from their experiences and so on, you would expect them to be good to very good.’ Other responses were more sensitive realising that particular traits were not necessarily associated with diversity characteristics: ‘From seeing both genders operating it, I didn’t see any difference. I saw people doing it well from both genders and I saw people who didn’t do it so well from both genders. I don’t think it was gender specific.’ Resistance to generalising by sex, ethnicity or profession was also evidenced in the following way: ‘it’s more, it’s not necessarily the roles that they are playing profession wise or their professional experiences, it’s more to do with them, their personalities, as individuals, their approach to life and people. They can be solicitors, barristers, whatever, and it usually exposes that. Are they comfortable with Ms Ekevit who is an asylum seeker if I recall and 96 doesn’t speak very good English and has a head scarf and looks rather poor, and does that make them feel uncomfortable and sometimes it does. Before they start proper, you can tell they don’t feel comfortable with this woman.’ Nevertheless, there was also a sense that a particular case study may benefit one group: ‘Generally barristers wouldn’t do very well on the housing stuff. They tended to take a much more legalistic approach. A lot has changed, certainly I noticed that over the course of the years. When I first came into the profession many of them were so pompous it was unbelievable. I think generally particularly with the development of the specialist Family Bar, I think a lot of them have become much better communicators. There are still some pompous asses though.’ ‘You’ll find a Barrister who has on his feet experience who will be very, very good at role play and who will be very, very good at interview. Solicitors who haven’t had advocacy experience do tend to struggle with the role play and be down-right boring in the interview.’ Others related advantage to the personal characteristics of the applicant. Note the following range of responses: ‘It would probably benefit some Asian communities because there was an element in it of how the religious aspects of the role play were handled. Now, you know, a clued up person no matter what their background is who was experiencing this can handle it, but obviously it’s your home religion so to speak you are going to know it so to speak. It would probably be a benefit actually rather than a disadvantage.’ ‘I think if he had an Asian, from my experience in [north of England] in general if you have an Asian Solicitor acting for an Asian family then quite often they’re fluent in the same language; they become more involved and therefore sitting as a Judge they tend to become more involved with the woman and more concerned about the children because they’re very family orientated. Families are a big thing and it passes even to the generation that were born in this country so I think there would be in general terms a different approach.’ ‘I think the male approach sometimes in it’s harshness, if it comes as harsh as that, will leave the disappointed litigant going thinking well I didn’t get much of a hearing.’ 10.2 Applicants’ Perspectives on the Role Play The overall impression of participants regarding the usefulness of role plays in assessing judges was positive. However, the participants were not unanimous regarding their own reflections on the role plays that they have participated in as part of the assessment centre exercise: Some participants explained that 97 the role play was useful in displaying their competences in practice. They argued that the role plays allow for the participants to put themselves in the role of a judge and demonstrate some significant competences such as decisiveness, assertiveness, time keeping and authority, which cannot be easily measured through other methods of assessment. However, some participants were more sceptical about the usefulness of the role play which has taken place in the assessment centre. They were sceptical as they argued that it is unreasonable to expect people who have no experience of being a judge to act it out. Some of them complained that there was conflicting information in the guidelines which did not prepare them well for the role play. Some others expressed concern in the time constraints as well as the overall interpretation of their performance. The participants, in the main, did not feel that there was any gender, ethnic or disability bias in general in the setting and delivery of role plays. Indeed most participants expressed views that such discrimination is not the case in role plays. It is interesting to note that some participants expressed surprise regarding the gender and ethnicity related questions. However, this was not the case each time. Several participants noted the variations in style of authority and decisiveness adopted by women, men, minority and majority ethnic groups as well as across other social divides to be an issue. They argued that such differences in their presentations are misconstrued as weaknesses. They raised also concerns regarding the insensitivity of the interpretations of the assessors in recognising diversity concerns in the role play exercises. The interviews with participants suggest that the assessors need to consider diversity issues that arise in the role plays more seriously. Participants felt that the role play imposed a very strict time constraint and this could be relaxed. However, some participants argued that time was not a serious constraint and that such constraints also exist in real life. There were no apparent concerns over time and diversity issues. Some participants identified that prior knowledge of the field in which the role play case study is located presented an important advantage for them. Similarly, lacking experience in ‘acting as a judge’ was considered an important barrier to successful performance during the role play. It was, for example, explained that if the participant was a specialist of the chosen role play then they would spend less time reading and understanding the specific guidelines. This presented a subjective element in the role play. Furthermore, the guidelines suggested that legal knowledge was not required, the role play required sentencing, which requires legal knowledge. Therefore, some participants felt that the guidelines were not clear and they were not prepared and equipped with the relevant knowledge regarding sentencing. Therefore, this has caused confusion. This issue links up with the earlier concerns about specific legal knowledge. Although this is supposedly not required, the practice of role plays suggested otherwise. Some participants argued that in order for the role play to resemble real life, it should allow for the judge to discuss the matter with other colleagues before a 98 decision is reached. This is directly linked with the comment of subject specialism above. This issue needs to be considered carefully in order to eliminate bias in the process of choosing role play topics and themes. The participants sounded unsure about the process and the observed criteria about the role plays. This has also caused a level of frustration in interpreting their personal performances. Coupled with this, some participants felt that their efforts to integrate diversity concerns such as disability and ethnicity issues in their role plays have disadvantaged them as the panel of judges have not shared the same interpretation of the role play. Some participants have noted of the benefit of talking to others in their families and professional networks regarding the assessment centre processes. This has created a kind of social network advantage for these individuals. One of the ways that such network advantage, which white men more than any other category of workers are likely to enjoy due to their overrepresentation in privileged legal networks, can be levelled off is to give more detailed guidelines regarding the content of the role play. 10.3 Recommendations: The following recommendations regarding extending the guidelines that the participants receive before they arrive at the assessment centre is very important. More detailed guidelines can help eradicate some of these social network disadvantages that women, minority ethnic and disabled candidates may suffer. • • • • • Assessor training in diversity and availability appeal mechanisms should be considered. the guidelines should prepare the participants to better understand the context, process and purposes of the role play exercise. the selection of the role play topic should not prejudice a particular gender, ethnicity or other arbitrary social category. The panel of assessors should be trained in possible diversity issues an appeal mechanism should be introduced in order to allow for different interpretations of role plays to be discussed. 99 11. THE ASSESSMENT CENTRE – THE WRITTEN & TECHNICAL PAPERS 11.1 Assessors For this part of the assessment centre, we asked about the marking of the papers and questioned them on the danger of uneven rating. In particular, we noted that the names of people were visible on the written papers and we asked if they should be ‘blind’ marked: Could there be disadvantage by gendered and ethnicised assumption that may be drawn by markers. The debates about unconscious stereotyping that can occur may be relevant and is linked to the importance of developing self awareness. ‘Yes I do because otherwise there is a risk that in the rush, because it is from crack of dawn until the end of the day its solid work. You take a bite to eat and a cup of coffee, a bite to eat at lunchtime and a cup of coffee on the round and you work. So there is not time and accidents do happen.’ ‘I mean, in a perfect world really is there any need for the name of the candidate to be known. I would have said no. I mean, if you to any sort of public examination, your name is not on the paper.’ Although for others, this was not an issue because they had not seen the performance in all of the assessment centre, only the interview and because of the pace of the marking process: ‘Because you’ve got 50 questions you’ve actually got to go through and mark. So one is doing the marking and the other is saying what the established answer is considered to be. Okay, so you got that. So really the name of the candidate hasn’t really engaged the brain at all.’ The nature of the objectivity of the process has to come into question when we learn: ‘obviously the judicial member will carry greater weight, if he says “I think it’s very good the way they dealt with that subject” then I might think “I don’t think it’s that good” but . . .’ Although this view was not widely shared. Nevertheless, the process inevitably led to some ‘horse-trading’. ‘we did have a chat round the table about the three different candidates and there was a bit of give and take then because we’d all made very comprehensive notes.’ 100 We should not be surprised or shocked at this; there are elements of subjectivity in all selection methods. However, what is important is the terms on which the ‘trading’ takes place. 11.2 Recommendations • • that all papers are marked by one assessor to avoid the potential problems of using only numerical identifiers, university style answer paper (stick down tabs concealing name) should be used. These can be revealed at the matrix stage to avoid any unintended mistakes. 11.3 Applicants’ perspectives on the written exercises There was a greater consistency of perceptions of the written exercises along the lines of gender and ethnicity. There was an overwhelming view that the time allowed for both papers was too little, with a number of applicants suggesting an extra 15 minutes. A small number of applicants felt that the time constraint was appropriate because it would demonstrate the ability to think clearly under pressure. However, some thought that it was unrealistic to expect applicants to operate in the same way as experienced judges, for example: ‘Yes in as much as judges operate under time constraints, not in the sense that if people are going to be new to this area of work then the early stages, even sitting as a judge in the early stages can take much longer and the time constraints I think were not fully taking that into account.’ In addition, some applicants observed that in practice, judges do not operate in this way: that they are able to take time out for reflection and to look up legal points and that they are not expected to store vast quantities of legal information ‘in their heads’, especially in the early days following appointment: ‘So I thought it was a horrendously technical, far too technical for what they were asking and it didn’t demonstrate potential because it meant actually you’ve got to know the law and there is no question of actually looking things up and learning as you go.’ Most applicants reported that they had spent large amounts of time preparing for the written exercises. Some had taken time off work. One common complaint was that the guidance notes were insufficiently detailed for applicants to understand what they would be tested on. One went so far as to describe the guidance notes as ‘misleading’ in this respect. This applied particularly to the technical paper. One applicant commented: 101 ‘If you’re going to have a closed book exam on technical detail, I think there should be some sort of warning, although I had done quite a lot of work, it was never really clear from the application exactly how much detail you had to memorize and obviously civil procedure rules are a huge matter. So even though I had about two and a half months to work with, it’s still you know you have to know what level of detail you should be knowing on these things.’ Overall views were mixed on the fairness of the two papers, with about half of applicants believing the exercises to be fair and the other half believing them to be unfair. One particular issue was the widely held belief that the technical paper for the recorder competition greatly advantaged criminal barristers, while the paper for the DDJ competition advantaged ‘high street’ solicitors. Most applicants said that they had not been prepared (by the guidance notes) for the extent of this problem and it was felt that this has to be confronted if the competitions are to be more genuinely open to candidates across the solicitor/barrister and criminal/civil divides. For example: ‘The DCA must recognize that they will be appointing people who aren’t criminal advocates and if they recognize that and assume that these people will be able to match the criminal advocates in terms of their ability on the bench, then they must assume that it’s going to take a non criminal advocate longer to do the work and pick up the law. It’s an area of law that they don’t practice in and that’s not reflected in the assessment centre. I am not saying that those that don’t do crime should be given longer time [for the technical paper], I’m just saying that limiting the time that people get, is wholly artificial. I really wonder what the DCA gets out of the written exercises; I don’t actually see the value in them.’ Related to this, a recurring theme was that legal practitioners are becoming increasingly specialised so that tests requiring more generalist legal knowledge become increasingly difficult to grapple with, the greater the distance between qualifying (and sitting generalist exams) and taking the test. This is likely then to be a particular disadvantage for older applicants and with some potential gendered and ethnicised dimensions. Further, many applicants queried the extent to which the written exercises, particularly the technical paper, were helpful elements of the assessment centre. Many questioned whether there was an opportunity to demonstrate the competences required for judicial appointments, for example: ‘Depends what we are trying to test here? Does it make you a better District Judge if you get over 50% on those papers, probably not? You could get that through, you know, through different routes. Are they trying to seek judges from a diverse background who have the competencies and the skills to be decent judges making the right decisions or are they trying to see who can remember what they studied possibly ten or fifteen years ago when they were doing their law degree or professional exams?’ 102 However, this was not a universally held view – some applicants (largely those who performed well in the written exercises) felt that it had been a good opportunity to demonstrate legal knowledge: ‘Very much so. What they want to know is if you don’t come from this area of law that you can learn it and we were given an opportunity because we were told what the areas were in advance to go off and learn it. So very much so.’ The question of whether or not assessors should know the identity of applicants when marking the written exercises was the one area in this part of the assessment centre where there was a marked ethnicised and gendered division of opinion. Most black and minority ethnic applicants felt on balance that written papers should be anonymous: ‘Well in order to make it fair, because their identity may betray their ethnicity because in other exams, people who are having their papers marked, they are not known by people who are marking them, public exams they are anonymous.’ Most female applicants agreed. However, white male applicants (and some white female applicants) were more concerned that assessors should know the identity of the candidate in order that allowances might be made for candidates with the ‘wrong’ legal background. 11.4 Recommendations • • • • • More detailed guidance notes on the two written exercises (but particularly the technical paper) should be provided in order that applicants are better able to prepare themselves. Sample written and technical papers should be provided. Consideration should be given to increasing the time allowed for each of the written exercises, particularly the written paper. Candidates’ identity should be anonymous on the written exercises. Further consideration should be given to the relationship between the competences and the written exercises and whether it is necessary to test detailed legal knowledge of particular areas and if so that this is made clear to applicants. 103 12. FEEDBACK 12.1 Automatic Feedback Feedback is not offered automatically. It is good practice from a diversity perspective to provide feedback automatically to candidates. This should be offered in a clear, unambiguous way which provides clear guidance of what competences the applicant needs to address. Applicants reported that it would be helpful to received feedback automatically. This would improve the openness and transparency of the system. 12.2 Recommendations • That feedback be provided to all candidates automatically 104 13 ON APPOINTMENT 13.1 Training All judicial appointees receive training to prepare them to undertake their duties. It is outside our terms of reference to comment on post-assessment centre training. However, we feel it important to report that we were informed that the training was perceived to be insufficient to prepare approved candidates effectively for the judiciary. Given that the assessment centre is designed to ensure applicants will be able to demonstrate judicial competences, this is a worrying comment. 12.2 Recommendations • Research should be conducted on wider aspects of judicial diversity. 105 13. OUTREACH 13.1 Open Days We attended an event held in 3rd of October 2005, titled “Step up to a Judicial Career”, is a part of the series of events organised by the Judicial Diversity Team of DCA. We were given the following information by one of the event organisers: • • • • • although diversity work has been going on in the DCA for years, Judicial Diversity Team has been officially established after the publication of the Consultation Paper on October 2004. There had been similar events organised exclusively for women and for ethnic minorities as well as the current one which is open to all lawyers from underrepresented groups. The aim of these events is to inform the lawyers from non-traditional backgrounds about judicial appointment system so that they can more confidently decide whether they want to apply for the competition. The feedback indicates that such events have a positive impact on the participants, although it was not clear in what way. Assessment centres were perceived positively since they gave the applicants the opportunity to demonstrate their skills. Various documents were available at the entrance to the event, including: • • • • “Judicial Salaried Part-Time Working” brochures, “Increasing Diversity in the Judiciary Consultation Paper”, “Increasing Diversity in the Judiciary, Summary of Consultation Paper”) These were available for the participants to pick up as well as a list for signing up for the newsletter about the forthcoming events and judicial appointments competitions. In the room, there were twelve tables arranged to sit five persons each in order to allow for group work. On the group tables there were packages for the participants with • • • • “Judicial Work Shadowing Scheme Application Form”, “Judicial Appointments” handbook, “Generic Competence Framework”, “Applying for Judicial Appointment: Ten Top Tips”. There were no name tags on the tables so that participants were free to choose at which table to sit. Interestingly, through their spontaneous sitting preferences, participants formed men-only and women-only groups. Around 45 participants attended the event. Among these only five of them were white males. Two third of the participants were female, more than half of whom were from white ethnic background. On the other hand most of the 106 male participants were from minority ethnic backgrounds (around two thirds) and two had visible disabilities. In total a little less than half of the participants were from minority ethnic backgrounds. Most of the participants were young and some of them were middle-aged whereas only observed to be older. The event started at 6.00 pm with a welcome talk and a short quiz. The quiz, which aims to test how much participants know about judiciary and status of the people from non-traditional backgrounds in the profession, acted as an icebreaker helped to create a friendly environment. Some examples of the quiz questions are: • • • • • First female law lord was appointed in 2004. What is her name? What advocacy experience is necessary in order to apply for judiciary appointment? What percentage of the serving judiciary in courts and tribunals is women? What percentage of the serving judiciary in courts and tribunals is from minority ethnic backgrounds? Who was the first high court judge from minority ethnic background appointed in 2004? Following the quiz, a 10 minutes speech was given about ‘Becoming a Judge’ where the stereotype of a judge (white, male, middle-aged, barrister, Oxbridge graduate) was pointed out. However, it was pointed out that the percentages of judges from underrepresented groups are still low at both courts and tribunals and even lower at the higher levels. Then she said that DCA is committed to promoting diversity and equality and a Judicial Diversity Program is under way. The key message of the program is ‘more people from underrepresented groups to challenge the stereotype’. It was mentioned that communication (through events, websites, booklets etc.) and work life balance (opportunities of salaried part-time work, flexible working, career breaks etc.) as some of the important areas of the program. Lastly, she encouraged the participants to apply for judiciary appointments by saying that there is an open competition and they may increase their chances of success through taking the advantage of work shadowing scheme. There were also presentations from two judges where they talked about their experiences as judges. First one of these was the ten minutes speech from a Deputy District Judge, Magistrates’ Court, who started his talk by joking that the only category he cannot check in the list of not suitable to be judge is women since he is 39 years old, from minority ethnic background and graduate of a polytechnic. He shared his experience as a judge and mentioned the ethical side of his job and the satisfaction he gets from contributing to the environment he lives in through his work. Lastly, he shortly talked about the assessment centres and explained the different stages of competition in the centres. He emphasised the transparency of the process and encouraged the participants to apply for judiciary appointments. Following him, a District Chair, Appeals Tribunal, made a ten minutes speech, which concentrated on her non-traditional judicial career experience where she had a career break and worked as part-time judge for some period. She ended her 107 speech by mentioning the rewarding dimensions of a career in a tribunal which sees as a gainful and useful occupation such as encountering with diverse range of people such as lay members of the tribunal. Following these speeches was the interactive section of the event facilitated by a Competitions Manager. Table groups were asked to discuss what they felt are the barriers to judicial appointment and deterrents to applying. After discussing these issues for around ten minutes, each group told about their perceptions of the barriers. The barriers to judicial appointment as perceived by the event participants were the following: • • • • • • • • • • • • • • • • Application form is very scary: very complicated and difficult to complete. It is easier for the barristers to complete the competences sections. Application is easier for barristers. Solicitors are not used to being involved in the process/procedure. Political background can be a hindrance. Career progression. If you are working with a partner, it requires a full commitment. School run: difficulties of marrying the domestic responsibilities with the judicial career (One of the female participants in the event commented: “I need to marry a housewife”). Lack of information about the application and competition process. Age. Stereotypical view of your background. Area of expertise, legal/technical background. Having working class roots (another participant said: “judiciary is very classist”). Lack of judicial training as opposed to the other countries where there is judge training. Working as an employee of a company (“Employer will not let you to take 15 days off”). Finding referees (“if you are in a small employee sector, how easy would you find a referee?” one participant asked “you don’t come across a senior judge for example”). Once these points are voiced by the participants, they were elaborated. The top tips were to read the application form, re-read it and read the competencies. Participants were warned to write their answers to the questions from the page 19 onwards around the competences and not to be modest while doing this because this is the place they have to sell themselves. The official said that having been in a political party or age is not barriers. She said that the competition process is transparent and they have to ask for feedback if they do not succeed at any stage. About the points made on career progression as possible source of barriers, she said that the only requirement for application is fee-paid appointment. On the considerations about expertise and specialism, she argued that if the applicant has the necessary competences, there will be a trained in judgecraft and short overview of law after the appointment. Furthermore, she said, in the 108 assessment centres they will be tested in the area of law which they apply to sit in. Participants were warned to prepare themselves and advised them to do work shadowing before the competition. They were advised that they can overcome the barriers regarding lack of information about the competitions through subscribing to e-news letter or even through signing for a one to one chat with some judges. About the barriers stemming from the demands of domestic responsibilities or of business partnership, the chances of flexible working in the DCA were mentioned. The family friendly policies of the organisation such as offering part-time salaried work were also identified. For example, once appointed they can make arrangements in their district team to fit the work schedule with school run and it will be up to them to manage their workload. Moreover, she pointed out, the DCA is looking for ways for making the judicial career more family friendly. Lastly, on the considerations about referees, she warned the participants that rather than going for referees who they think are impressive like law lords, they have to go for people who really know them well. In the questions and answer session, many of the questions asked were on referees (Can it be a client? Does it have to be the employer? At which stage does the consultation take place?). One question was about the benefits of volunteering (sitting as a lay member in the tribunals, diversity consultation etc.). Lastly, a participant asked about the representation figures for the disabled and elderly at judicial ranks at the courts and tribunals. At the end of the event, evaluation forms were distributed and participants were welcomed to have the opportunity to talk with each other and the judges in the foyer when having refreshments. This was a highly informative event that would have provided a greater insight into the process for those who had attended. 13.2 Positive Action Training 13.2 There are many kinds of outreach work and it has been outside our terms of reference to consider them. However, it was insightful to note the following comment: ‘I believe that people can be trained in many areas which would facilitate their chances of getting appointment to a significant extent. Now that of course gives rise to questions of funding and all sorts of things. Well, on the one hand you could say that they should pay for it themselves, on the other hand if we are trying as a society to appoint judges from different backgrounds then we need as a society to put our hands in our pocket to do that.’ This form of positive action training could be usefully employed. 13.3 Preparatory Courses We also noted that candidates can take advantage of expensive courses to prepare them for the judiciary. Again we are not able to comment on this, but noted the following comment: 109 ‘Well, we actually had one candidate who had been through that process (a course which prepares candidates for the judiciary assessment). And we were led to believe that it was a very expensive process. And he didn’t learn anything from it at all. Didn’t help him at all, it was rubbish.’ Forms of positive action are an important way forward. It is better for the DCA to plan and organise such organises as the standard can be monitored. It is important that such course should be available to all those who might benefit. 13.4 Recommendations • • That pre-application open meetings targeted at under-represented groups should be held (with members of 'minority' groups as speakers). that the establishment of positive action initiatives that may enable disadvantaged groups to operate in a level playing field be consider. 110 14. CONCLUSIONS This report has examined the impact of assessment centres for judicial appointments on the diversity of those recommended to the Lord Chancellor for appointment. This is a narrow remit and confines the analysis to the processes surrounding the assessment centre. Inevitably, this confines the report to understanding the selection process per se. However, it should be clear that we recognise that these processes are situated in a wider context of discrimination, not only on the grounds of race, sex and disability but also sexual orientation and age and other categories. The structurally embedded nature of such discrimination leads to its reproduction. Assessment centres are one means of human resource management intervention, which may seek to challenge the reproduction of unfair discriminatory practices. However it must be recognised that the impact of such interventions are inevitably partial and cannot address fundamental forms of institutionalised discrimination in society. Nor can they fundamentally challenge the entrenched vertical and horizontal segregation in society by sex and by ethnicity. This is not to suggest that such human resource interventions may not impact upon unfair practices and limit the manifestations of overt discriminatory behaviours; such interventions have the potential to play a part in a limited arena. From the literature review, it is evident that assessment centres are not necessarily associated with non-discriminatory selection. Indeed certain conditions need to be in place for them to provide a fair system of selection. The literature review has identified a number of potential flaws in assessment centre operation that jeopardise assessment validity in general and specifically with regard to diversity. Our research indicates that whilst the judicial assessment centres meet, many of the criteria required to overcome such potential flaws, there are a number of areas that are a cause for concern. The literature points to the danger that assessment centres may not always be fair on the grounds of ethnicity (in particular) and sex; however, it also recognises that they also have the potential to eradicate ethnicity and sex bias. We began the report with a statement about the intention to increase the diversity in the judiciary without departing from the key principle of appointment on merit. This statement causes us some concern. By coupling ‘increasing diversity’ with ‘without departing from the key principle of appointment on merit’, there is an immediate implication that unless great care is taken, the principle of merit will be compromised. Clearly great care should always be taken in judicial appointments and it is not necessary to link this to the principle of diversity. Indeed, it is the case that a more diverse judiciary may have a more positive impact on the quality of the judiciary to engage with the complex problems before them in contemporary society. It may be that linking the aim of increasing diversity with appointment on merit is designed to reassure the dominant group in the judiciary that standards will not fall – if this is the case, it indicates a complicit pandering to discriminatory assumptions. 111 Nevertheless it is clear to us that whilst there is evidence and espoused will to effect change, there are major organisational and implementation gaps. In particular, we would suggest that there are unclear lines of communication between the Judicial Appointments Directorate and the Diversity Unit at the DCA. It is unclear how our project links with the various projects running in the Diversity Unit. This suggests to us that there is work to be done in coordinating equality and diversity work in the Department. Further, the transfer of espoused policy to practice is very uneven. The research was carried out using a multiple approach to method, which meant that the findings could be verified through a process of triangulation. For example, evidence emerging from the documentary analysis could be corroborated with evidence from the interviews and listening to interviews. This has resulted in a robust qualitative study supplemented by quantitative data. In Section 4, we drew on the statistical data from the two competitions to understand statistical evidence of bias. For the Recorder Competition, Human Asset’s evaluation found that sex and ethnic group did not appear to influence overall success at sift or at the assessment centre; although they cautioned that with regard to ethnicity, small numbers may limit the validity of this finding. Solicitors were also found to do less well at sift. The larger group, involved in the DDJ competition, led to different findings. Women were more likely to be successful at Sift and also more likely to be recommended for appointments following Assessment Centre than men. Again barrister candidates are more likely to be successful at Sift than Solicitor candidates, although interestingly professional background did not appear to exert any influence at the Assessment Centre. Ethnic group did not appear to have a significant influence at Sift nor at Assessment Centre. When gender and ethnicity are combined as categories, black and minority ethnic women may have greater success rates at sift than black and minority ethnic men (although again we must have some caution on the statistical generalisability of these results because of small numbers). These results are not indicative of statistics on other judicial appointment competitions, but comparisons need to be made at all levels. Whilst diversity was a key objective of the assessor training, our field work indicates that this objective was not seen to be met by all. The assessors are a variable group and as such a shared knowledge of diversity cannot be assumed. It is also the case that the assessors are a highly educated as well as high status group and it is possible that they assume that they know more about diversity than they actually do. The more ‘diversity aware’ assessors recognised the need for increased diversity input in the training. The DCA assessment centres are well documented and the results on the whole carefully recorded, although we have identified some gaps. The documentation is extensive. Indeed, there is an argument to be made that it is too extensive and would benefit from greater simplification, greater clarity of definitions and expectations. 112 We have some concern about the use of the term ‘diversity’. It is clear that the DCA wants to increase the diversity of the judiciary with respect to sex, ethnicity, disability and profession. Indeed the plan is to widen the pool from whom the judiciary may be drawn. The competency approach is also seeking evidence of sensitivity and experience of diversity in the competency framework. Our exploration of the documentation and the responses from applicants leads us to the conclusion that there is some ambiguity in the statements and that applicants are not really sure how to deal with their diversity contribution. More worryingly, we found evidence that it seemed that sensitivity to diversity was ‘assumed’ in the case of black and minority ethnic candidates but not always credited in the assessment centre weighting. Yet we also noted that rather weak examples of diversity were given by white candidates and due credit given. In other words, there seemed to be an uneven credit attribution between white and minority ethnic candidates. Similarly, there seemed to be an unevenness of approach in dealing with the lived experiences more commonly associated with women. The variability of assessors and their experiences were important in understanding some of the differences and unevenness of practice that we found. The human resource experience of the DCA officials often balanced the judicial assessors, although there were examples of deferring to their legal expertise. We noted that whilst six out of 40 panel members are from minority ethnic groups, only one minority ethnic assessor was used in the two competitions we investigated. The value of the sift panel was useful in moderating the sifter(s)’ assessments, although reasons for differences of recommendation was not always clear. We are also conscious of the very demanding schedule required of assessors (and applicants) during the assessment centre day and note that care should be taken to ensure that this work intensity does not compromise the assessment. The competence approach was on balance seen as a fairer way of recruiting both by first time applicants and by those who had entered previous competitions. Nevertheless, the approach is not without its flaws. The extent to which certain competencies can be assessed at sift was questioned because of the variability of experience of candidates. Managing workload was one that was given as an example. Further, good practice equality principles indicate that each competency should be assessed twice. This was not the case for the competencies in the competitions. The consultation process led to some interesting insights. There is a marked difference between the groups, but particularly between the black and minority ethnic candidates and the other two groups. It is clear that this group is much more aware of the subjectivity that can creep into the consultation process. They are aware of the institutionalised nature of racism in Britain and the consultation process is the area where it is most likely to manifest itself within 113 the Assessment Centre. Notwithstanding the supportive evidence of the early consultation process, we would favour a system where the shortlisting is not influenced by the consultation process. We further noted that many applicants were not immediately in tune with the term ‘consultee’ or ‘consultation process’. Frequently, this question needed to be repeated during the interviews. We feel that this may add to the mystery around the process and that some demystification of the language should take place to increase transparency. This is likely to resonate immediately with those who are not in the dominant networks of the judiciary. The sift is a critical stage in the selection process since this will determine whether an applicant will be invited to the assessment centre. At sift the candidate is required to demonstrate a range of competencies. Not all candidates were familiar with the concept of competencies and therefore unsure how to tackle this approach. The ratings in the sift are taken forward and counted in to the assessment centre ratings (if applicable). It is then the case that the interview is often shaped around the competencies identified in the application form and then rated again. Now our concern is with diversity. We found that certain experiences may be valued less at sift, and given the current approach, this may be replicated in the interview; this is a serious issue from a diversity perspective but also from a more general perspective of fairness. We found evidence in the interviews of non-compliance with the principles set out in the documentation and the training received. Too much variability in the type of questioning is not good practice. Where questions on diversity were asked, they were of a variable quality and sometimes questionable in what they were seeking to assess. Questions on diversity were not always asked. There was a general view among assessors and applicants that role-plays were a useful method of selection and their addition made a more effective selection method than previous methods of interview only. It was also the case that some felt the situation of the role-play case study may benefit particular groups. However, those who had previous judicial experience, had taken part in work shadowing or had the benefit of professional judicial networks were likely to be better equipped to undertake the role plays. Overall views were mixed on the fairness of the two written papers, with about half of applicants believing the exercises to be fair and the other half believing them to be unfair. One particular issue was the widely held belief that the technical paper for the recorder competition greatly advantaged criminal barristers, while the paper for the DDJ competition advantaged ‘high street’ solicitors. Most applicants said that they had not been prepared (by the guidance notes) for the breadth and level of knowledge they were required to demonstrate. Further, it was felt that this information had to be provided if the competitions are to be more genuinely open to candidates across the solicitor/barrister and criminal/civil divides. On balance, we conclude that the assessment centre is a superior method of selection as compared to the interview only. However, it is clear that the guidelines, interview approach and interpretation of the competency evidence 114 in an assessment centre need to be reviewed to ensure that the assessment centre is free from bias. In other words, assessment centres are not a panacea for good equality and diversity practice – they can make a contribution to better practice only when there is compliance with the necessary conditions of good practice guidelines on equality and diversity aspects of assessments centres. 115 SUMMARY OF RECOMMENDATIONS The following recommendations summarise the recommendations provided at the end of each section in the report. General • • • • • In equality statements and other DCA documentation, the phrase ‘increasing diversity’ should not be linked with the phrase ‘without departing from the important principle of merit’. Age should be included in all future equal opportunities statements. All groups mentioned in the equality statement should be welcomed and encouraged to apply. that the statement on sexual orientation be removed from the equal opportunities statement but that sexual orientation is retained as a category as the basis of equality. The establishment of other positive action initiatives that may enable disadvantaged groups to operate on a level playing field should be continued or further explored. For example: o Pre-application open meetings targeted at under-represented groups should be continued and monitored (with members of 'minority' groups as speakers). o Training courses on how to make an application for judicial appointment should be introduced and targeted at underrepresented groups. o Work shadowing and mentoring arrangements should be further developed. o Web page resources updated to include helpful information and examples to encourage a wide range of applicants to apply for all levels of the judiciary for which they are qualified. • • Determine further strategies based on sound research evidence to challenge wider aspects of a lack of diversity at different levels in the judiciary. Assessment centres should be continued and extended to other levels of the judiciary subject to full compliance with good practice in equality and diversity principles. 116 • The findings of this report should be put before the forthcoming Independent Judicial Appointments Commission. Assessment Centre Practice • • • • • • • • • Consideration should be given to establishing an appeals mechanism, whereby unsuccessful candidates can request an independent review of their application (including panel assessment outcomes). The increased accountability that this would involve would help to ensure that due process is observed by all assessors. In order to increase applicant confidence in the appeal process, appeal outcomes should be published in the public domain along with other data on judicial competitions. Future statistical data collection should distinguish between white and BME women and white and BME men. These data should be compared against applications to and success to other levels of other judicial appointments. The assessment centre practice should set out to value a broader spectrum of diversity not only in terms of ethnicity and gender, but also individual experiences such as different forms of legal education, experience in different legal establishments, different forms of specialisation and contribution to the legal profession. It is clear from the interviews that these latter categories themselves are gendered and ethnicised. The assessment centre practice should de-emphasise ability to ‘fit in’, as evidenced by ability to network, including previous access to the profession and acquaintance with senior legal staff. What is meant by ‘potential’ should be clarified in the guidance notes in order to avoid misunderstandings. In Part A, Section 1 of the application form, personal details should be removed from the application form prior to the sift. Eligibility should be confirmed on receipt of the form. Consultees’ reports should not be taken up unless the applicant is invited to the assessment centre.. Less recent consultees of candidates who have taken a career break due to reasons of maternity or health should be given equal weight and the documentation amended to this effect. The terms ‘references’ and ‘referees’ should be used and would be more meaningful to many from under-represented groups. 117 • • • • • More thought needs to be given to how sensitivity to and experiences of diversity are really weighted as against professional experiences. This then needs to be clearly communicated to applicants in the guidance notes. Clearer guidance to candidates should be provided about how broader life experiences might be used to demonstrate competence. A clearer steer on diversity issues should be communicated to applicants by developing a specific diversity competence. A clearer and inclusive definition of what is meant by diversity should be set out in the guidance notes to avoid applicants interpreting it as meaning simply ethnic diversity. Consideration should be given as to whether managing workload continues as a competency. • The sift mark should be used to determine the outcome of the sift process only. • • • • • • • • Where the applicant does not appear to have met the competencies on the application form and the sift panel decide that s/he should be invited to the assessment centre, the reason for this decision always must be clearly stated. Clearer guidance should be provided to applicants on what will happen in the interview. The content and structure of the interview should be redesigned to avoid repetition of the contents of the application form. To give a broader range of applicants the opportunity to demonstrate competency, a limited number of hypothetical scenarios should be developed on which to base a proportion of interview questions. Assessors should be required to include appropriate ‘diversity questions’ in the interview for all applicants in order to be able to evaluate and compare sensitivity to diversity among applicants. Every effort should be made to ensure that the interview recording facilities are fully operational. The guidelines should prepare the applicants to better understand the context, process and purposes of the role play exercises. Role play topics should not prejudice a particular gender, ethnicity or other arbitrary social category. It is important to note that occupational 118 gender segregation is prevalent in law and choice of topic may prejudice the process. • • • • • • Sample written and technical papers should be provided in the application pack. More detailed guidance notes on the two written exercises (but particularly the technical paper) should be provided in order that applicants are better able to prepare themselves. Candidates’ identity should be anonymous on the written exercises. To avoid the potential problems of using only numerical identifiers, university style answer papers (stick down tabs concealing name) should be used for written papers. These can be revealed at the matrix stage to avoid any unintended mistakes. Consideration should be given to increasing the time allowed for each of the written exercises, particularly the written paper. All written papers should be marked by one assessor. Consistency of approach should be adopted in handling the diversity aspects presented in the application form. Assessors • New assessors should be selected on the basis of their understanding of sensitivity to diversity issues. • • • • • The content of training for assessors on assessment centres should be reviewed to ensure systematic delivery of diversity training objectives. Additional diversity training should be provided by experts in the field of equality and diversity. The review should lead to detailed changes on the equality and diversity content of this training. In particular, examples of appropriate and inappropriate lines of questioning on diversity issues need to be discussed and careful attention paid to ensuring an understanding of the dynamics of social processes to prevent poor practices being reproduced.. Strenuous efforts should be made to appoint more women and black and minority assessors and to ensure that all interview panels are diverse. 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