Guidance

Guidance

Workplace environment: risks of failing to protect and support colleagues

Workplace environment: risks of failing to protect and support colleagues

Status

This guidance is to help you understand your obligations and how to comply with them. We may have regard to it when exercising our regulatory functions.

Who is this guidance for?

All firms we regulate, including managers and other individuals involved in senior leadership within law firms and other organisations delivering legal services.

Purpose of this guidance

This guidance explains our approach where we consider that firms have failed to take appropriate steps to look after their staff's wellbeing in the workplace. It sets out the main standards that apply to law firms and those responsible for their culture and the systems in place within them.

Introduction

We have received complaints that some firms have an unsupportive, bullying or toxic working environment and culture.

These include concerns ranging from systemic bullying, discrimination or harassment to the failure to address such unacceptable behaviours when complaints are raised; from the failure to provide the support systems and supervision necessary to deliver legally competent services, to exerting pressure to take short cuts or act unethically.

This kind of environment can impact significantly on the wellbeing and mental health of a firm's staff. It can also lead to mistakes being made and poor outcomes for clients - or serious ethical concerns, for example when staff feel under pressure to cover up problems.

We recognise that practising law can sometimes be pressurised and stressful, involving long hours, heavy workloads and dealing with challenging and demanding clients and situations. A career in the law can and should nonetheless be rewarding.

As a regulator, we do not direct the working practices or procedures that firms should adopt. However, we will take action if we believe that there has been a serious regulatory failure. For example, where the work environment does not support the delivery of appropriate outcomes and services to clients or creates a culture in which unethical behaviour can flourish or where staff are persistently unable to raise concerns or have issues addressed.

We take these issues seriously. We encourage anyone who has suffered or come across bullying, harassment, discrimination and victimisation in the workplace to report them to us. See our guidance on reporting and notification obligations.

We appreciate that for some individuals this may be challenging and that this takes courage - our guidance on Your Health, Your Career includes a section ‘Where to get help'. Our Codes of Conduct make it clear that both firms and individuals must not subject anyone to detrimental treatment for making, or proposing to make any such report to us, or otherwise attempt to prevent anyone from doing so.

Our expectations on firms

Firms should do everything they reasonably can to look after their staff's wellbeing in the workplace; to protect staff from bullying, harassment, discrimination and victimisation, while supporting their staff so they can work safely and effectively.

This means taking steps such as:

  • having effective systems and controls to supervise staff, and monitor concerns which may affect their wellbeing and competence
  • providing a safe environment for employees to raise concerns and addressing them promptly and in a constructive manner. Firms should also be aware that that poor performance by an individual could be a warning sign that an individual is working under stress or duress
  • treating staff with dignity and respect to create an ethical workplace and engaged employees that create a better client experience
  • having in place and implementing policies on bullying, harassment, discrimination and victimisation as well as disciplinary procedures for breach of those policies.

A failure to do so may involve breaches of equalities legislation or employment law, or health and safety legislation. We encourage staff to raise any issues with their firm and we expect that these will be properly dealt with in accordance with the firm's own HR policies in the first instance. Once that process has been exhausted, we recognise that the Employment Tribunal is often then the primary route for redress where an individual remains concerned about the way they have been treated at work.

However, such a failure may also lead to breaches by the firm of our regulatory requirements, as set out in the sections below.

Systems and controls

Paragraph 2 of the Code of Conduct for Firms requires all firms to have in place effective governance structures, arrangements, systems and controls to ensure that they and their staff can comply with all applicable regulatory and legislative requirements, as well as managing all material risks to their business.

As the introduction to the Code explains, requirements such as these aim to create and maintain the right culture and environment for the delivery of competent and ethical legal services to clients.

A failure by firms to put in place and effectively implement systems to support and protect staff will increase the risk that individuals or firms breach one or more of our other regulatory requirements.

Supervision and Competence

Paragraph 4 of the Code of Conduct for Firms requires firms to ensure that services provided to clients are competent and delivered in a timely manner, and that managers and employees are competent and keep their knowledge and understanding of their legal, ethical and regulatory obligations up to date.

Firms also need to have proper systems for supervising clients' matters.

Proper supervision is more than just checking that staff are progressing client matters. It means making sure that, at the very least, firms have in place arrangements to regularly monitor and assess employees' workloads and capacity as well as their competence to do the work.

We also expect that firms have in place the systems and culture so that staff can confidently raise concerns and be supported if they are experiencing problems. This will help to prevent problems arising in the first place, or the situation worsening.

We provide more detail on the things you can put in place in our Workplace Culture Thematic Review. These include training your managers on dealing with concerns, having regular 121s and rewarding positive behaviours which demonstrate treating others with respect and dignity. This will help to prevent problems arising in the first place, or the situation worsening.

We know that if staff are not adequately supervised and supported, or worse, experience bullying or blame if mistakes are made, this can prevent them from coming forward and disclosing mistakes - or even cover them up, increasing the risks for clients, and a far more serious regulatory outcome for breach of Principle 4 or 5 (acting with honesty and integrity).

Fairness and inclusion

Principle 6 requires firms to act in a way that encourages equality, diversity and inclusion. Paragraph 1.2 of the Code for Firms provides that firms should not abuse their position by taking unfair advantage.

We expect firms to treat all of their employees fairly and with dignity. This includes creating an environment that is inclusive and free from discrimination, bullying, harassment or victimisation.

To help build such an environment, staff need to be confident that complaints of discrimination, bullying, harassment and victimisation will be dealt with by firms promptly, fairly, openly and effectively.

Where we find serious cases of bullying, harassment, discrimination or victimisation by individuals within firms, we will expect to see that the firm involved has taken action to prevent or address this behaviour. Where this is not the case, this may lead to allegations that the firm has failed to meet Principle 6 or to act in a way that upholds public trust and confidence in the solicitors' profession and in legal services provided by authorised persons: Principle 2.

Where proper systems and procedures are put in place by firms to address these issues, this will reduce the risk of problems and demonstrate that firms are taking appropriate steps to meet their obligations. So, for example, having policies that address workplace behaviours and which highlight that bullying, harassment, discrimination or victimisation will not be tolerated and that action will be taken by the firm where they become aware of such issues. Firms should keep evidence to show that such policies are being followed and the action they have taken when such issues have arisen.

When we will take regulatory action

We will hold individuals to account for serious failures to meet our standards in accordance with our Enforcement Strategy.

As the Enforcement Strategy makes clear, we focus on breaches that are either particularly serious in isolation, or which demonstrate a persistent failure to comply or a concerning pattern of behaviour. Therefore, in relation to firms, a one-off complaint for example due to a single episode of bullying, is unlikely to lead to regulatory action. However, we are likely to take action against a firm where, for example, there is evidence of:

  • a pattern of the abuse of authority by senior staff that has been left unchecked by the firm
  • a complaint of discrimination, victimisation or harassment not dealt with by the firm in a prompt and fair manner
  • complaints of bullying raised with the firm over a period of time involving a number of staff and inadequate action taken by the firm as a result; or evidence that the incidents had not been brought to light sooner because of the firm's culture and/or inadequate reporting and disciplinary procedures
  • a firm pressurising staff to withdraw their complaints     
  • ineffective systems and controls, including failure to supervise or support staff leading to serious competence or performance issues or delivery failures
  • the imposition of wholly unreasonable workloads or targets.

In addition, senior managers may have the responsibility for the culture and systems within firms and be held responsible for the firm's failures under paragraph 8.1 of the Code of Conduct for Firms, as well as ensuring that staff are competently and properly supervised where they supervise or manage others (under paragraphs 3.5 and 3.6 of the Code of Conduct for Solicitors, RELs and RFLs).

The case studies which accompany this guidance provide some examples of the types of reports - especially of bullying - which we consider may or may not meet our thresholds for investigation and taking disciplinary action.

Encouraging good practice

We have set out separately advice and guidance to help firms make sure they avoid the risks referred to above and maintain healthy working environments where staff are valued and supported. Please see:

Firms might also wish to look at

Further help

If you require further assistance, please contact the Professional Ethics helpline.