Introduction

The legal world has always been a challenging place in which to work and, as the pressures of modern life increase, regulation becomes more complex and overheads grow, it is unlikely that those challenges will go away.  The extent to which those working in law firms – be they solicitors, paralegals, managers or support staff – are able to cope with those pressures will inevitably vary according to the person, the role they perform and the environment in which they are required to undertake their duties. Thus, one person’s intolerable working conditions may be another’s challenging environment.

However, in some workplaces those pressures go much further than the mere pressures caused by the type and intensity of the work being undertaken.  It is not uncommon for there to be incidents of abuse; threatening, intimidating or humiliating behaviours; unreasonable demands made of staff, punitive working patterns; and psychological pressure.  This has led to the concept of the “toxic workplace”.

The issue of the “toxic workplace” is one which has received a fair amount of coverage over the past few years and is closely linked to workplace bullying. Many in the personnel world see the issue of the toxic workplace as a growing problem – to the extent that in the USA many states are implementing “healthy workplace” legislation to try and curb its effects.

It is widely acknowledged that those who are forced to work in a toxic environment become unhappy and unproductive, have low morale and lose respect for supervisors or managers, become prone to sickness absence and in many cases start to suffer from mental health issues.  Sometimes, staff will be driven to leave the employer but in other cases they are simply made to feel worthless and trapped – unable to do anything to change or remedy their situation. Indeed, workplace stress is now the biggest cause of long-term sickness absence for all types of employees.

The extent to which an individual’s working environment can affect how they do their job and the extent to which it can excuse an individual’s acts has been brought to the fore this month with the decision of the High Court in Solicitors Regulation Authority v James & Ors.The case involved a solicitor – Sovani James – who had backdated correspondence to make it appear that she had progressed a clinical negligence case, when in fact she had not done so.  The deception, which had lasted for a total of 17 months was blamed by Ms James on:

• the negative culture of the Firm,
• the consequent loss of confidence in her abilities arising from that culture,
• the significant stress and anxiety she experienced as a result of personal circumstances which affected her ability at work, and
• mental health problems.

Ms James had not denied the dishonesty and had apologised for her actions but had stated to that she had no recollection of creating the letters and modifying or backdating them.  She said that at the relevant time she was suffering from a mental health condition and therefore denied that she could have formulated an intention to be dishonest.

Overturning a decision of the SDT simply to suspend Ms James, the High Court expressed the view that whilst the ‘toxic and uncaring’ culture of the firm was an explanation for her dishonesty, it neither excused it nor constituted exceptional circumstances justifying a lesser sanction than a strike-off. In his judgment, Lord Justice Flaux stated:

‘It may be that pressure of work or an aggressive, uncaring workplace could excuse carelessness by a solicitor or a lapse of concentration or making a mistake, but dishonesty of any kind is a completely different and more serious matter.’

What can be done about toxic firms?

Whilst inevitably there has been criticism of the High Court’s decision, with calls for the SRA to address the issue or for the courts to adopt a more effective balancing exercise, at the end of the day it is down to individuals and firms to address the toxic working culture which led to issues such as this arising.

There are, inevitably, different sides to the problem.

There is the problem of firms recognising those with genuine mental health issues (which can and often does arise from stress) and making adjustments to ensure that those issues are handled sensitively and effectively.  This is clearly an issue of fundamental importance and one which organisations such as LawCare are striving to address.

Then there is the problem that many firms operate in such a way that, whether because of cuts to legal aid or volumes of work, stress in an inevitable daily by-product of what they do. Unless the overriding attitude towards legal services – especially publicly funded legal services – changes then it is unlikely that this is a cause that is likely to be addressed in the short term.

However, there are firms who simply operate, or permit, a toxic work environment for their staff or who have failed to recognise that individuals within the firm are perpetrating a toxic culture.   This is something which can be addressed and concerning which there should be greater awareness than there currently is.

Whether it is a regulatory issue, as some would suggest, or whether it is simply an issue for better management going forward, is a moot point.  Should, for example, the SRA be doing more to ensure that firms treat their staff with more respect and are receptive to mental health and similar issues?  If so, how should this be achieved?  Should there be a positive duty placed upon firms?

It is possible to argue that the opportunity presented by the division of the forthcoming Code of Conduct between solicitors and firms is one that has been lost.  There is certainly very little in the SRA Rulebooks (either current or forthcoming) that addresses the needs of those working in solicitors’ practices.

Both the current and the proposed Handbooks are largely silent as to how firms should treat their partners and staff.  There are currently the general exhortations contained in the SRA Principles 2011 to act with integrity, maintain public trust, comply with legal obligations, run the firm effectively and with proper governance and to encourage equality and respect diversity.  These, in a somewhat shorter (and arguably even less effective) form, are re-iterated in the principles in the forthcoming rule book.

There are the references in the current Code of Conduct to issues such as equality, reasonable adjustment for those with a disability and the need to manage the firm in an appropriate manner.  There are references in the forthcoming SRA Code for Solicitors and in the Code for Firms not to discriminate or abuse a position by taking unfair advantage.  However, on the whole, all of the provisions in the Code are mostly focused on the needs of clients.

Given the division of the two Codes between individual and firm, has an opportunity to raise protections for those working in solicitors’ firms been lost?

For example, would the inclusion in the SRA Code for Firms of a requirement upon those firms to treat staff with dignity help prevent situations such as those found in the James case?  Possibly an additional paragraph in section 1 along the lines of:

“You ensure that your managers and interest holders and those you employ or contract with treat all of your managers, employees, contractors and others with dignity and in a way that respects their personal and workplace rights and that you do not allow, either by act or omission, abusive, threatening, intimidating, humiliating, bullying or similar behaviour towards those within your workplace.”

Section 1 does, after all, contain a clause requiring firms to monitor, report and publish workforce diversity data – so clearly it is not all high-level principles only.

Steps to stamp-out toxicity

It is vital that both employers and employees are involved in stamping out toxicity within firms if problems such as those in James case are to be avoided.  In neither case is that an easy thing to achieve, but there are some steps that can be taken.

From the firm’s point of view, there are two angles to this – recognising that a toxic work-environment is counter-productive in the long term so far as profitability and stability are concerned and being aware that there may be those within the firm who, for personal reasons, are promoting a toxic environment.   Look out for the signs that staff are finding the workplace a difficult one in which to be – increased absenteeism, back-biting, staff regularly staying late in the office to meet deadlines, bullying, overt-criticism of staff by managers,  or high staff turnover.  If you identify individuals within the firm who you believe may be creating a toxic atmosphere then address the situation, don’t hope that it will go away.

From the individual’s point of view it is even harder.

If it is one individual who is the problem, then consider confronting them – either on a one-to-one basis if you are confident in doing so or with the support of co-workers or colleagues if you are not. Gather data before you confront someone to help avoid the individual going for the straight denial.  Keep a record of the date and facts from those occasions when you have experienced it.  Consider raising the issue with a manager or partner before it gets out of hand.

If the problem is the firm itself then you will need to decide whether the position you are being put in is one which you can handle or get used to, or one which is unacceptable.  If the latter, then you might want to consider whether you want to work there at all.  Remember, few jobs are so important that they are worth allowing your health – physical or mental – to suffer.  Bear in mind that the way you have been treated might amount to constructive dismissal for which you may be able to make a claim.

Don’t keep your problems to yourself – talk to someone, for example, a friend, colleague or an organisation such as LawCare (800 279 6888) or the Solicitors Assistance Scheme (0207 117 8811) who are there to help.

Be very wary of being asked to do things which you are not comfortable with or which you think might be in beach of the SRA Code of Conduct or other regulations. If in doubt contact the Lawyers Defence Group or speak with the SRA Helpline (0370 606 2555).