The Solicitors Regulation Authority (SRA) has published guidance[1] which sets out, in relation to looking after staff wellbeing in the workplace, its expectations of law firms and those responsible for their culture and internal systems. This was released alongside their Workplace Culture Thematic Review[2].
This practice note sets out the key regulatory requirements for law firms on protecting and supporting staff wellbeing along with practical considerations. It is suitable for law firm managers, compliance officers and those in leadership roles (including line managers).
The need for action
The SRA report having received complaints that some firms have an unsupportive, bullying, or toxic working environment and culture1. Concerns raised included:
- systemic bullying, discrimination or harassment;
- failure to address unacceptable behaviours when complaints were raised;
- failure to provide the support systems and supervision necessary to deliver legally competent services;
- pressure being exerted to take short cuts or act unethically.
Of those responding to the SRA’s Workplace Culture Thematic Review2 25% felt that their firm didn’t have a positive culture, highlighting long working hours, unmanageable workloads, pressure from clients, targets that ignored other achievements, and concerns about reporting mental health issues and unacceptable behaviour.
The SRA recognise that a poor workplace culture can significantly impact personal wellbeing and mental health as well as have a negative impact on ethical behaviours, competence and the standard of service received by clients. Law firm managers and compliance officers should be alert not only to the regulatory implications for their firm of not addressing such issues but the wider impact on the stability of the workforce and the business.
What do the SRA expect?
The SRA expect firms to create and maintain the right culture and environment to deliver high quality legal services to clients whilst having effective systems and controls in place.
Whilst not dictating practices or procedures firms should adopt, the SRA will act if there has been a serious regulatory failure. Examples include where the working environment doesn’t support the delivery of appropriate outcomes, creates a culture in which unethical behaviour can flourish or where staff are persistently unable to raise or have concerns addressed1.
Key regulatory requirements
The key regulatory requirements are set out in the SRA’s Standards and Regulations[3] which include the Principles[4] and the Code of Conduct for Firms[5] (the Code).
The Principles4 are the starting point when dealing with ethical issues. They set out the standards expected, requiring firms and individuals to act:
- in a way that upholds the constitutional principle of the rule of law, and the proper administration of justice (Principle 1).
- in a way that upholds public trust and confidence in the solicitors’ profession and in legal services provided by authorised persons (Principle 2).
- with independence (Principle 3).
- with honesty (Principle 4).
- with integrity (Principle 5).
- in a way that encourages equality, diversity and inclusion (Principle 6).
- in the best interests of each client (Principle 7).
The Code describes the standards and business controls applicable to firms, its aim being to create and maintain the right culture and environment for the delivery of competent and ethical legal services to clients[6].
Policies, systems and controls
The Code requires firms to have effective governance structures, arrangements, systems and controls in place to ensure they, and their managers and employees, comply with the SRA’s regulatory arrangements as well as with other regulatory and legislative requirements (paragraph 2.1).
Effective systems and controls might include:
- policies and procedures covering bullying and harassment, discrimination, victimisation, equality and diversity and whistleblowing.
- the provision of appropriate support including training, supervision, monitoring (performance and competence), workload management and wellbeing support.
- treating all staff with dignity and respect, ensuring that everyone is treated equally and providing a safe environment for staff to raise concerns.
In the context staff wellbeing and the requirement in paragraph 2.1(a) of the Code to comply with “other regulatory and legislative requirements” firms should have regard to health and safety legislation, employment law and equalities legislation.
Whilst there is no specific legislation exclusively covering mental health and stress at work employers have a common law duty to take reasonable care for the health and safety of employees so as not to expose them to unnecessary risk. They may be negligent if they do not take such steps as are reasonably necessary to protect the safety of their employees (which includes their mental health).[7]
Employers also have an implied contractual duty to employees regarding health and safety and the provision of a safe system of work as well as an implied duty of mutual trust and confidence.
Relevant workplace legislation includes:
- Health and Safety at Work etc. Act 1974[8] – the provision of safe systems of work, information, training, support and the requirement to undertake risk assessments (including assessing the risk of mental or stress related ill-health).
- The Management of Health and Safety at Work Regulations 1999 (SI 1999/3242)[9].
- Working Time Regulations 1998[10].
- Protection from Harassment Act 1997[11].
- Equality Act 2010[12].
Under paragraph 2.5 of the Code firms are obliged to identify, manage, and monitor all material risks to their business. With poor workplace cultures impacting on wellbeing, ethical behaviours, competence and client service, firms with a poor workplace culture are not managing several material risks to their business.
Failure to have appropriate systems and controls in place, as required by paragraph 2.1 of the Code, might also lead to a breach of paragraph 1.2 whereby firms must not abuse their position by taking unfair advantage. Failure to manage an unacceptably heavy workload might be considered contrary to the expectation to maintain trust and act fairly.
Equality, diversity and inclusion
Principle 6 requires firms to act in a way that encourages equality, diversity and inclusion whilst Principle 2 requires them to act in a way that upholds public trust and confidence in the profession. A firm’s failure to have systems and controls in place which prevent, or address complaints of discrimination, bullying and harassment is likely to lead to allegations of a breach of both principles. The SRA’s expectation is that firms will take appropriate action to deal with such matters.
Firms may also fall foul of paragraph 1.1 of the Code (firms must not unfairly discriminate by allowing personal views to affect professional relationships) if they do not ensure managers apply policies fairly and consistently.
Service, supervision and competence
Paragraph 4 of the Code addresses service and competence. Firms must ensure that the service they provide to clients is competent (paragraph 4.2). They must ensure that managers and employees are competent to carry out their role as well as keeping their understanding of their legal, ethical and regulatory obligations up to date (paragraph 4.3). They must have effective systems for supervising client matters (paragraph 4.4).
The SRA interpret supervision widely. It means more than checking that matters are being progressed and includes arrangements to monitor and assess workloads and capacity as well as competence to carry out the work1.
Managers should know if their staff are under pressure due to unmanageable workloads and consequently at higher risk of making mistakes, cutting corners or acting unethically. Robust supervision and monitoring systems help mitigate this risk, particularly as unethical behaviour is often influenced by whether people think they will be caught[13]. Failure to address these issues might lead to allegations of a breach of Principles 2 and 7.
Raising concerns and mistakes
Firms should have systems to allow staff to raise concerns with confidence and, should they do so, receive the necessary support. Firm culture must ensure that staff feel able to do this in safe way, without fear of bullying or reprisal and, in the case of mistakes, without blame. Fear of reporting is a barrier to behaving honestly and openly when things do go wrong. A mistake which is covered up will almost certainly have a worse outcome from the perspective of the individual, the firm and the client and is likely to be contrary to Principles 2, 4, 5 and 7.
Practical considerations
The table below includes further practical considerations to help firms support staff and manage their regulatory risks.
| Leadership | Set the tone from the top.
Ensure leaders role model good behaviours. Ensure messaging and treatment of staff is supportive and consistent. |
| Mental health and challenging stigma | Raise awareness and facilitate an open dialogue.
Provide access to services eg: – employee assistance programmes – mental health first aiders/champions. Train managers to spot the signs of stress. Implement wellbeing checks. Encourage senior managers to share personal stories. Use pulse surveys to collect regular feedback about how people are feeling. Signpost to sources of external help eg LawCare[14] |
| Inclusion | Send a clear message that bullying, harassment, victimisation and other exclusive behaviours will not be tolerated.
Create a sense of community. Promote buddying/mentor schemes. Use networks to connect people to each other. |
| Managing workloads | Proactively monitor workloads at team meetings/management level.
Ensure capacity systems take account of individual perceptions of what is manageable. Question the validity of chargeable hours targets. Is there sufficient non-chargeable time built in to allow positive workplace culture eg informal chats and networking groups. Is there time for employees to collaborate and share their time more generously with others who may need support? Encourage employees to set boundaries and stick to them – pay particular attention to homeworkers. |
| Managing expectations | Manage the expectations of others, including clients.
Don’t expect replies to emails outside working hours. Consider email signatures which include working days and hours. Restrict emails on mobile phones. Be authentic. Ensure senior leaders don’t undermine messaging about working within core hours by doing the opposite. |
| Measuring and rewarding performance | Include values and behaviours in performance reviews.
Review the firm’s wider approach to reward. Reward based solely on financial metrics can have a negative effect on culture and undermine good behaviours. Consider non-financial metrics such as teamwork, personal development, leadership qualities, client satisfaction and compliance. |
| Policies and procedures | Have the right policies and procedures in place to support staff including:
– anti-bullying and harassment – anti-discrimination and victimisation – equality of opportunity – risk and compliance (including ethics) – wellbeing – whistleblowing Ensure that policies are meaningful; that reality reflects the policy and that they are consistently applied. |
| Reporting mistakes | Fear of reporting acts as a deterrent and drives unethical behaviour.
Adopt a “no blame” approach. Use mistakes and near misses as a learning opportunity. Discuss them anonymously but openly in team meetings. Encourage senior managers to share positive personal stories of mistakes they have made. |
| Reporting unacceptable behaviour | Ensure there are no barriers to reporting.
Treat complaints seriously to maintain trust and confidence; set the expectation that action will be taken. Publish formal and informal options for reporting concerns. Create a safe environment for those affected to speak out. Ensure policies provide for at least initial contact with someone without influence over career decisions eg HR Manager. Encourage everyone to call out poor behaviours. Ensure consistency of decision making. |
| Support and supervision | Good teamwork helps learning and social cohesion. Employees value peer support.
Supervisors should: – undertake regular wellbeing checks. – have regular catch ups/one-to-ones – monitor and discuss workloads – discuss problem files – promote discussion about ethical decision making in team meetings |
| Training | Ensure line managers receive relevant skills training including:
– dealing with inappropriate behaviour – creating a no blame culture – soft skills – spotting the signs of stress and mental ill-health Ensure staff receive training to support them to make ethical decisions and understand their regulatory obligations. |
Responsibility for compliance
Managers are responsible for compliance by their firm with the Code (paragraph 8.1).
COLPS are separately responsible for ensuring compliance by the firm, its managers and employees with the SRA’s regulatory arrangements which apply to them. They also have an obligation to report any matters which they reasonably believe are capable to amounting to a serious breach or which they reasonably believe should be brought to the regulator’s attention (paragraph 9.1).
Enforcement
The SRA will hold individuals to account for serious failures to meet the required standards in line with their Enforcement Strategy[15], with a focus on serious one-off breaches or patterns of poor behaviour which have been left unchecked.
Action may be taken against the firm, or an individual, including senior management under paragraph 8.1 of the Code.
[1] SRA Workplace environment: risks of failing to protect and support colleagues
[2] SRA Workplace Culture Thematic Review
[3] SRA Standards and Regulations
[5] SRA Code of Conduct for Firms
[6] Introduction to the SRA Code of Conduct for Firms
[7] Walker v Northumberland County Council [1995] 1 All ER 737, [995] ICR 702
[8] Health and Safety at Work etc. Act 1974
[9] The Management of the Health and Safety at Work Regulations 1999
[10] Working Time Regulations 1998
[11] Protection from Harassment Act 1997
[13] CIPD Research report – Rotten apples, bad barrels and sticky situations: an evidence review of unethical workplace behaviour (April 2019)
