The time has come again for all SRA-regulated firms to ask their staff to provide their diversity characteristics such as ethnicity, age, gender identity and educational background. The window for submitting the data to the SRA opened on 4 June 2019 and closes four weeks later, on 2 July 2019.
Given the time-consuming nature of the process, and the many pitfalls which firms may encounter, it is important that all SRA-regulated firms act now.
Submitting the data to the SRA
The diversity information, once compiled, should be submitted to the SRA via the portal on its website.
Submitting the data to the SRA is a regulatory requirement and the SRA may take enforcement action if firms fail to do so by the 2 July deadline.
Collecting the data
The format of the SRA’s template questionnaire is similar to that used in the last reporting round in 2017, but there are some issues of which firms should be aware, such as:
- GDPR: The collection of diversity information will involve the processing of “special category” (i.e. sensitive) personal data such as ethnicity and disability characteristics. There are many pitfalls associated with collecting and processing this kind of data, and a number of policy and notification requirements that firms should ensure are in place. Unfortunately – but perhaps understandably – the SRA is not willing to give any detailed guidance on how to ensure the collection and processing of the data is GDPR-compliant.
- Identifying whose data should be collected: Firms should take care to ensure that they request all employees to complete the questionnaire, including those on maternity leave or on sickness absence leave if they are in contact with the firm. Secondees should also be included, but not employees who are usually based outside England & Wales.
- Categorising each person’s role: Each member of staff will need to be categorised as one or more of a large number of categories such as solicitors, partners, legal executives, assistants, support staff, trainees and employed barristers. If you feel it would be unclear for those in certain roles, you may wish to clarify which category those job titles will fall into.
- Using the data for global diversity surveys: It is increasingly common for global firms to aggregate diversity data across all offices. This will invariably require the transfer of personal data outside of the UK and potentially outside of Europe. It is crucial that the recipient of the data has arrangements in place to comply with the GDPR and the Data Protection Act.
- Using the old template: The SRA has said that, although firms should aim to collect the extra information their revised template asks for in the current round, if a firm has already collected the data using the old questionnaire, that can in many circumstances be submitted without the extra information.
The collection and compilation of the data can be outsourced, but firms should note that this also raises its own GDPR and regulatory issues.
Publishing the data
The SRA expects most firms to publish their diversity data on an anonymised basis, but many firms (or their UK offices of larger firms) will be too small to ensure that the data is truly anonymous. There is no need to make a formal application to the SRA to waive the publishing requirement if a decision is taken not to publish data for this reason, but it is important that the rationale for that decision is adequately recorded.
Next steps
Further information about the process can be found on the SRA’s website at: www.sra.org.uk/diversitydata. At Fox Williams we advise firms on the process, notably in relation to data protection issues, which can be particularly challenging.
