Organisations that want to create change often have a choice to make; whether to use a carrot or stick approach to produce the transformation they want. Some might use both. Some might be drawn to one or the other, often as a result of personal preferences and motivations. However, for many law firms, new rules introduced by the SRA have created a situation whereby compliance has to be considered when it comes to wellbeing and dealing with toxic cultures. In other words, firms will need to think about using the stick.
In this article, we set out what the SRA guidance is and we think about its broader implications for wellbeing initiatives in law firms.
The SRA Guidance on wellbeing at work
The SRA is the body in the UK that provides guidance to solicitors on ethical issues, laws and regulations. Under that broad remit, the SRA has been thinking about law firm culture and those firms with toxic cultures in particular.
In May 2023, the SRA provided updated guidance to firms on the risk of failing to protect and support colleagues. The rules “include specific obligations in the Codes of Conduct for both firms and individuals to treat colleagues fairly and with respect, and not to engage in bullying, harassment or unfair discrimination. They also clarify [their] approach to situations where a solicitor's health issues may affect their ability to practise or to participate in [their] enforcement processes.” (SRA)
The SRA justifies its involvement by stating that where poor working cultures impact staff wellbeing, behaviour and standards of service to the public, they have a duty to act. The latter is the key driver. However, what is clear is that the SRA will now step in where individuals and firms have failed to take appropriate steps to look after colleagues' wellbeing.
What is Wellbeing?
Rather than define wellbeing, the guidance describes what kind of environment and behaviours might impact on wellbeing and mental health. One of these is bullying. The SRA defines bullying as
unwanted behaviour that is either:
Offensive, intimidating, malicious or insulting; or
An abuse or misuse of power that undermines, humiliates, or causes physical or emotional harm to someone.
They expect solicitors to treat colleagues fairly and with respect and not to bully, or harass, or unfairly discriminate against them. The SRA won’t act on every breach, only the most serious. They recognise the importance of managers speaking out when they see unfair treatment.
What are the expectations of firms?
The SRA suggests some steps that firms can take, including (our emphasis):
Having effective systems and controls to supervise work, and monitor concerns which may affect individuals' wellbeing and competence.
Providing a safe environment for people 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 people with dignity and respect to create an ethical workplace and an engaged workforce that provides 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.
The guidance also points to a range of resources to encourage firms to think about good practices. We welcome these signposts and the fact that whilst a regulator cannot help but be seen as an enforcer, the SRA is also trying to get firms to think about wellbeing in a positive light.
What does this mean in practice for law firms and wellbeing?
We can’t help but think that the fact that the SRA felt such guidance was necessary is a sad indictment of the profession. Clearly, they did and our experience of speaking to individuals and firms is that the reality is that wellbeing does need to be a focus for firms. This has been the case for many years. It would be unfair to say that firms haven’t been working hard to create better cultures. They have. Unfortunately, fee-earning and client demands often come out on top.
The SRA note that “practising law can sometimes be pressurised and stressful, involving long hours, heavy workloads and dealing with challenging and demanding clients and situations.” They do not suggest this need change, but they do add that “A career in the law can and should nonetheless be rewarding.”
We wonder if the SRA has missed a trick. The impact of the environment does have a direct effect on lawyer wellbeing and actually, the issue is a systemic one, which involves clients. As a regulator, the SRA is well-placed to think about systemic impacts. They note that they will step in where client service is compromised. We can’t help but think that sometimes it is the client's demands that lead to the behaviours the SRA would be looking to step in to reprimand.
What about Microaggressions?
Microaggressions are “ commonplace verbal, behavioral or environmental slights, whether intentional or unintentional, that communicate hostile, derogatory, or negative attitudes toward stigmatized or culturally marginalized groups”.
There is a lot of overlap between this definition (Wikipedia not SRA!) and the SRA definition of bullying (an abuse or misuse of power that undermines, humiliates, or causes physical or emotional harm to someone).
Sadly, microaggressions are commonplace in workplaces. They often happen unconsciously as a result of bias. We all have biases - it is how we have evolved. Understanding that and thinking about the implications is a long journey but one that firms that are serious about DEI need to take. Microaggressions frequently occur when there is an imbalance of power and because of that, they are hard to challenge. The author can bring to mind a number of slights they have been on the receiving end of, all of which went unchallenged because of the dynamics between themselves and the person who said it.
Lawyers will recall the “egg-shell skull rule” – where you must think about the reality of a plaintiff in tort. With microaggressions, it is often the accumulation of slights, and the more vulnerable position that the recipient is in, that makes the impact beyond that which the aggressor might otherwise foresee. That doesn't make the aggressor right, what it does is make it less likely that the recipient will feel empowered to stand up.
Will these slights come under the SRA guidance? They could do, particularly where they are frequent. However, wording in the guidance about the level at which the SRA will intervene, makes it likely that they will not.
The SRA speaks of supervision. They mean the systems in place to ensure the quality of the work being delivered is up to par. We would have liked to see them go further. In line with therapy and coaching, we know that supervision in the therapeutic sense, is starting to be discussed in the context of legal firms.
Supervision for coaches, offers a richer and broader opportunity for support, it is a “safe environment and conversational space for growth, reflection and challenge”. We believe that for certain lawyers, particularly those working with emotive matters such as medical negligence, family law, etc. having supervision with accredited coaches would massively support wellbeing. The emotional burden that is held by these lawyers often has nowhere to go. If you are interested in being a pioneer in this regard, and being involved in a pilot project get in touch.