The SRA has opened a consultation into rule changes on health and wellbeing in the workplace. It runs until 27th May and, arguably, comes not a moment too soon for the profession.
Grab yourself a cuppa and see the SRA wellbeing consultation paper here.
New proposed SRA rules on bullying
The regulator intends to fundamentally change the conduct rules to “…make it clear that those we regulate must treat colleagues with respect and dignity. And that if they fail to do so, we will take action where necessary to protect the interests of clients and the public”.
The proposed changes include a positive obligation on solicitors to challenge workplace bullies and those who fail to treat others fairly and with respect.
The SRA wellbeing consultation
So, what’s triggered this proposed rule change? In its important recent thematic review on toxic workplaces (which we covered here), the SRA identified a link between workplace culture and ethical decision making.
The accompanying guidance note effectively made it a regulatory requirement (arguably by the back door) for firms to look after their employees’ wellbeing, stating:
“We expect firms to create and maintain the right culture and environment for the delivery of competent and ethical legal services to clients with effective systems, supervision arrangements, processes and controls in place.
This includes taking steps to run businesses in a way that supports wellbeing by minimising the risk of working practices and workplace behaviours leading to poor mental health. A failure to put in place systems that protect employees may lead to an increased risk of breaching our regulatory requirements.”
The guidance ‘encouraged’ solicitors and law firm employees to report instances of bullying and harassment directly to the SRA. The new consultation proposals take this a step further, with an explicit change to the Codes of Conduct to:
- Compel individuals and firms to treat peers fairly and with respect, and
- Challenge peers who fail to do so
This protection is intended to cover anyone in the wider team, such as counsel and experts.
As we have seen in some high profile SDT prosecutions, the SRA is more than prepared to step in where there are misconduct issues outside of the workplace too. Works parties, drinks and social events are fair game.
Would you shop your boss?
In theory, blowing the whistle on bullying and harassment is the right thing to do. But is it easier said than done?
Would a junior lawyer, paralegal or trainee feel compelled to shop a powerful senior partner? And what if the remaining partners are equally as toxic? Could this in fact worsen the wellbeing effects of the bullying beyond the victim? The junior becoming a kind of secondary victim through a regulatory mechanism?
Or imagine if you were on the brink of being made a partner and come across workplace behaviour that is clearly not ‘fair’ or handled ‘with respect.’ Are you really expected to challenge the person who is deciding the path of your career, for the sake of a workplace issue?
And then you have the disgruntled employee with an axe to grind. This new rule potentially gives them another way to stick it to the firm. What impact will this have on firms’ willingness to terminate under-performing employees?
Arguably, bullying is subjective. Behaviour that is offensive or toxic to one individual will be water off a duck’s back to another. Let’s face it, working in a law firm has never been a walk in the park. It is often a high pressure environment that attracts strong personalities.
Will we see the SRA’s enforcement team overrun with relatively minor disputes that are more suitably resolved through internal HR processes and employment law?
What makes our regulator qualified to be the arbiter of workplace disagreements, anyway?
Credit where it’s due
All that aside, there is no getting away from the fact that bullying in the legal profession is a real issue. And it no doubt takes its toll on health and wellbeing.
The regulator has to be commended for at least recognising the problem and trying to do something about it.
If the rule changes in the SRA wellbeing consultation go through, it will make the profession unique in forcing employees to take steps to challenge poor behaviours.
No doubt this consultation will draw a lot of responses. In today’s climate, nobody will want to be seen to be ‘anti-wellbeing’. Perhaps there is even a danger that the consultation responses will be tainted with a certain amount of confirmation bias.
It will be interesting to hear what the Law Society has to say, given its pro-wellbeing stance and history of resisting additional onerous rules.