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The Solicitors Regulation Authority is now planning to target ‘toxic’ work cultures in an effort to reduce the incidence of lawyer error and its wider impact.
LawCare has reported that in 2021, there was a 24% increase in the number of people contacting it because of stress. Other major reasons that prompted calls to the charity last year included anxiety and, worryingly, bullying.
It should therefore come as a concern that, notwithstanding the prominence given to the issue of mental wellbeing in the workplace in recent years, parts of the profession are continuing to fail. The SRA said in February 2022 that it has (presumably recently) received complaints about unsupportive, bullying or toxic working environment and culture.
Explicit obligations
The regulator is increasingly concerned about the wider impact of poor lawyer wellbeing on clients themselves and is now consulting on proposed rule changes (the consultation closes on 27 May 2022). It wants to make crystal clear to firms exactly what is expected of them – both as a firm and individual solicitors.
There are many, often sad examples of where solicitors have slipped in their competency or taken unethical steps while under severe stress – for example, backdating or fabricating attendance notes, telling a client the case is progressing when it’s not or ‘borrowing’ cash from client account because of financial stress.
The regulator’s aim is to clarify its approach in cases where a solicitor’s health problems affect their ability to practise or to take part in the SRA enforcement processes. For example, a disciplinary hearing cannot fairly proceed, meaning they can continue to practice - potentially risking making mistakes and putting the public interest at risk.
So what’s the SRA proposing? The bottom line is that regulator wants to ‘reinforce’ its powers where risk to clients stem from a firm’s poor work culture. It wants to do this partly by imposing explicit obligations on firms and individual solicitors to treat colleagues fairly and respectfully and not to engage in bullying, harassment and unfair discrimination. If they disregard this, regulatory action may follow.
It also wants to make clear that the SRA will act where risks arise as a result of a solicitor’s health issues, however long they’ve been qualified (using conditions on their practising certificate if necessary).
SRA Guidance
The regulator has also just published information on how it would approach firms who have not taken appropriate steps to guard employees’ wellbeing.
Firms are required to take reasonable steps to look after their employees’ wellbeing. Breaches could lead to formal complaints and potential legal action under the Equality Act, health and safety regulations and employment laws.
Firms are expected to take various steps at a minimum, including implementing effective bullying and discrimination policies, systems and controls for staff supervision and monitor concerns which may affect their wellbeing and competence. They must also create a safe environment in which employees feel able to raise concerns and the firm can address them effectively.
If you are a solicitor and concerned about your wellbeing at work and believe your firm is not taking reasonable steps to protect you, the regulator suggests you raise the issue at first instance with your employer. The issue should be properly addressed under the firm’s policies and procedures (assuming they are up to scratch).
If this fails, taking steps towards starting legal action may become necessary.
It should also be considered whether the matter should be referred to the SRA. However, it will only take action in the case of “serious regulatory failures”, for example, a pattern of abuse of authority by senior staff that has been left unchecked by the firm or imposing unrealistic targets and unreasonable workloads.
The guidance can be found here and the SRA consultation here.
