The Legal Sector Workers Union (LSWU) has committed to backing legal action Bar professional training course (BPTC) students sitting exams next month may want to bring against the Bar Standards Board (BSB).
The concerns over the approach to holding the exams remotely for most – through Pearson VUE’s online proctoring system – and especially the difficulties of some of the hundreds of students needing ‘reasonable adjustments’ to sit the centralised exams have been growing for some time.
If necessary, they can request to sit the tests at a Pearson VUE exam centre, but students have been reporting difficulties  with having their adjustments catered for.
In a statement issued yesterday, the union’s barrister members called on the BSB to accommodate students “properly, now and in future”.
It said: “We believe that an open book format would provide the most equitable playing field and best reflect the skills required for practice.
“At the least, no student should be required to take exams with insufficient time in-between, at centres an unreasonable distance away, or without adequate breaks, extra time, or spelling checks.”
The union also urged chambers’ pupillage committees to waive requirements for incoming pupils to achieve a certain BPTC grade, and to disregard the grades of prospective candidates in the next application round, particularly at the paper sift stage.
The barristers also committed to raising the issue with our own chambers’ pupillage committees.
“In addition, we commit to supporting these students in any legal claim for discrimination they may bring against the regulator as far as we can in accordance with our ethical duties.
“We are committed to an inclusive bar and are deeply disappointed to hear about the experience suffered by students at the hands of our regulator.”
Students wrote to the BSB last month  to outline concerns about the discriminatory impact of the proposed exam format, and proposing a change to an open book exam.
In response, the BSB stated that all reasonable adjustments would be catered for, and no student should be asked to waive a reasonable adjustment.
The LSWU said: “Despite these assurances, students report being asked to accept inadequate or no adjustments, or to defer exams until December. Many have been allocated exam slots in test centres very early in the morning or far from their home.
“On 20 July, booking opened to students without adjustments in test centres despite not all students with adjustments being accommodated.
“Students without adjustments have reported extremely limited test centre availability, meaning that those without access to a stable internet connection or quiet room (likely to be poorer students) but nevertheless forced to sit the exams via the online proctoring system risk their exams being terminated.”
The barristers said it appeared that Pearson VUE was “simply unable to accommodate the needs of students and that it and the BSB are attempting to shift the responsibility onto students by requiring that they either waive adjustments, sit exams online, or defer”.
They continued: “Given that the exams have already been deferred from April until August, and that students will need to begin employment before December, including taking up offers of pupillage, asking them to defer again effectively forces them to waive their adjustments…
“Let us be clear: this is discrimination. If left unresolved, it will make a mockery of the notion of ‘diversity’ and ‘social mobility’ at the Bar – a profession in which disabled people are already vastly underrepresented.”
The Young Legal Aid Lawyers group echoed the union’s concerns, calling on the BSB and Pearson VUE “to properly accommodate students in line with their reasonable adjustments immediately”.
It also urged the BSB to ensure that mitigating circumstances provisions were robust for those requiring adjustments in this cohort, and that chambers commit to taking these issues into account when considering candidates for pupillage.
Separately, in an article for The Guardian  yesterday, BPTC student Meg Foulkes, director of the Open Knowledge Justice Programme, wrote about her privacy and bias concerns over the use of facial recognition by Pearson VUE for students taking the exams.
Pearson VUE said its software used “sophisticated security features such as face-matching technology, ID verification, session monitoring, browser lockdown and recordings”.
Ms Foulkes wrote: “Remote proctoring has been designed for the BSB’s ideal candidate. This white person passes the facial matching checks without a hitch. They don’t have any of the disabilities the BSB tells us to warn the remote proctor of at the beginning of the exam, in case uncontrolled movements flag suspicion.
“They have a fast internet connection and no dependants on lockdown who will make noise, or have the cash to hire a socially distanced childminder to watch them. They don’t have noisy pets, or can do as the BSB advises and hire a petsitter.
“They are not nervous about being monitored throughout the exam by an invisible watcher behind their screen. Oh, and they certainly have a strong bladder, because the system prohibits leaving your computer – for any purpose.
“We need to take these exams. But the discrimination and intrusion into our private lives is not an acceptable solution.”
A BSB spokesman said: “The BSB has taken great care to ensure that the arrangements for sitting centralised assessments in August take account of our duties under the Equality Act.
“We do not believe that the arrangements we are making or the technology we have chosen – a system which has been successfully used by Pearson VUE, who deliver more than 16 million exams around the world every year – are in any way discriminatory.
“Human invigilators are also involved throughout the online proctoring process.”