With a return to the office on the horizon, commentators and academics are warning businesses to be prepared for a rise in misconduct and harassment issues. Here, we offer our best practice steps for law firms and partners to mitigate against an increase in such behaviour.
A fifth of lawyers in the UK claimed to have suffered sexual harassment or bullying at work, according to research by The Times published last August. The SRA also disclosed that complaints to the regulator of sexual harassment in the workplace have risen steeply in recent years, with 117 active cases related to sexual misconduct being dealt with as at June 2020.
We also know that younger members of the legal profession are disproportionately affected by sexual harassment and bullying at work following an International Bar Association (IBA) report in May 2019. Almost one third of respondents under 25 said they had experienced bullying in the past year, compared to one eighth of respondents aged 55-59. Further, one third of female respondents reported that they had suffered sexual harassment, compared with 7% of male respondents.
In her forward to the IBA report, Australia’s prime minister Julia Gillard attributed the #MeToo movement to lifting the silence on sexual harassment that women had previously been prepared to accept and urged the legal profession ‘to advocate and usher in change’.
Law firms and their partners need to set the bar high and exemplify that harassment and bullying is not tolerated or encouraged in any way.
Social movements such as #MeToo and #BLM have begun to pave the way for change in the industry: cultural progression has been ignited and attitudes are shifting towards identifying ingrained prejudices and embracing greater inclusivity. Most major law firms have announced various measures such as anti-racism and workplace harassment taskforces and have pledged to foster a working environment that is based on respect and dignity.
Yet, law firms should avoid futility: procedures and reporting mechanisms are only as good as the corporate culture in which they sit. They must continue to move away from historic tendencies to silence victims of bullying and harassment, towards taking genuine action. From a wider cultural perspective, fostering a ‘speak up’ environment, and, importantly, minimising the fear of retaliation is crucial. Calling out bad behaviour and not turning a blind eye or leaving it to someone else needs to be encouraged. Settling claims does not resolve the underlying unacceptable behaviour nor does it address the legal and regulatory obligations of law firms and their partners to ensure the health and safety of their staff and eradicate unlawful discrimination and harassment.
Many incidents of inappropriate behaviour at work involve alcohol. With a return to workplace gatherings and the reopening of pubs, it is easy to contemplate an unhealthy increase in alcohol intake in all the excitement. Consider designating “alcohol-free partners” at work events to provide supervision, and/or indeed expressly limit alcohol intake at work-related events and impress responsibility on partners to drink responsibly. A few firms have gone so far as to prohibit alcohol completely from the workplace and work-related events.
There are two aspects to policies. First, they must exist: as a minimum, firms should have thorough policies in place for harassment and bullying, grievances, disciplinaries, whistleblowing, equal opportunities and workplace socialising. Second, they must be realised: firms should react seriously and quickly to complaints and make relevant reports to the regulator. Absent internal policies, indecision can reign about how to respond and conflict in strategy could arise.
The sensitive nature of sexual harassment and bullying allegations warrants handling by trained persons who can deal with complainants in a way that ensures trust and confidence remains intact. Having a specific conduct committee that can advise on relevant policies can assist the firm’s overarching obligations regarding employee health and wellbeing, plus its duty to the regulator.
Policies should explain the standard of conduct expected of individuals, including partners, what behaviours will not be tolerated and the potential repercussions of infringing behaviour. With regards to partners, the conduct committee might consider linking profit share to misbehaviour as part of the potential penalties for the same.
Firms should be careful not to create a culture of tolerance for some kinds of “inappropriate” behaviours, even if those behaviours may not always be considered “unlawful”. As we hopefully approach a summer of social interactions free from legal constraints on social contact, there could be a huge increase in colleague meet-ups post-lockdown. Social distancing measures may still be in place which may deter physical touching, however, harassment can be verbal and non-tangible and work-related socialising policies should reflect this.
The processes for reporting harassment and dealing with reports should be detailed so that individuals know what to expect and to guarantee their concerns are handled effectively and confidentially: organisations should act quickly and consistently.
Training and education
Most people have a reasonable, common-sense understanding of what constitutes inappropriate workplace behaviour, but often jump first to extreme examples where there is a clear right and wrong and neglect to consider the grey areas. Training should focus on less obvious examples of bullying or discriminatory behaviours to generate awareness what transgresses acceptable conduct.
Law firms should proactively assist partners and managers in understanding difficulties in interpretation of nebulous terms such as ‘bullying’. Education is more effective than legislation. So, whilst policies are vital in setting out an organisation’s expectations, they are only effective if they are uniformly understood and observed. Setting parameters of acceptable conduct is integral for prevention. Regular training should encourage discussion of those behaviours which some may not perceive as unacceptable but could be read the wrong way, illuminating how perceptions of and impacts on the individuals concerned can differ. The training should be a call to action to create a respectful environment.
Education also informs partners of the risks to the business, and individuals personally, of getting it wrong; especially in the current climate where calling out sexual harassment has momentum. Apart from breaching equality legislation and the regulator’s code of conduct, reports of sexual harassment and bullying could also constitute whistleblowing. Early intervention in unacceptable behaviours is important in setting standards. Delay or reluctance to deal with serious allegations could be seen as condoning behaviours, thereby increasing legal and regulatory risk for the firm and undoing the culture the firm is seeking to create.
As with any action undertaken to bring about effective change, if it is not lead from the top of the organisation, it will flounder. Particular emphasis on the greater responsibility law firm partners and senior management have in ensuring the workplace environment is respectful is hopefully within our grasp.
*NB In this article we use the term “partner” to refer both to members of a limited liability partnership and partners in a general partnership, unless otherwise specified.
If you are a law firm, a professional practice partnership or LLP and would like to discuss any issues relating to managing partner wrongdoing, training for partners in responding to and escalating complaints of bullying and harassment, or on the drafting of partner behavioural policies, please contact Partner Emma Bartlett, who specialises in partnership and employment issues.
This article was first published by The Global Legal Post.