Last month, we looked at some ethical questions arising for firms from situations such as that in the SRA’s Regulatory Settlement Agreement with KP – in summary, where an employee suffering from physical or mental illness makes mistakes or otherwise does something that raises questions of potential professional misconduct. We now look at the position of the individual and ask what the key considerations to have in mind may be from that perspective.
Absent illness – and in the interests of ensuring both the individual and the firm are able to comply with their duties under the Code of Conduct, including to provide a proper standard of service to their clients – the expectation within the profession would be that, when mistakes have been made, the appropriate course of action would be to report this.
In principle, the same should be true in the context of employees with illness. But a particular difficulty arises where, as may have been the case in of KP, the fact of that illness is not shared by the employee or, perhaps more unusually, is not recognised by the individual in the first instance.
We have considered some of the ethical questions relevant to the firm in such a situation. But employees, too, have their own ethical questions to weigh here, perhaps most pertinently: to what extent do they owe a duty to share sensitive personal information, especially medical, family or emotional information, with their employer? The appropriate point might well be when the issues, whatever they may be, begin to impact on the person’s performance. That sounds straightforward but it is not hard to imagine a multitude of situations where it is just not as simple as that.
Admitting to illness and, in particular, mental illness – particularly when that may be caused by the stress of the job itself – is no doubt still seen by some in the profession as a sign of weakness, whether or not this continued view is acknowledged openly. People can be unwilling to share their health or emotional problems with their employer and continue to work when those problems mean they may not be fit to do so.
As alluded to in my last column, the chance of this sort of situation arising can be reduced by employers providing a supportive, holistic package and adopting the 'open', 'no blame' culture but it cannot be eliminated altogether, not least given each individual is unique, will bring their own thought-process to a difficult situation and will respond to illness differently.
What, for instance, if the individual was aware that they are unwell but had not sought treatment because they had found that they did not have time to do so due to weight of work?
Or, if the individual is facing serious health problems, it may be that they are themselves in denial about that very fact. By definition, that would mean they would be unable to raise their illness with their employer by virtue of the illness itself.
In any of these instances, it may be that the employee decides to 'keep their head down' or to 'do the right thing'. This might be to avoid attracting negative attention from senior staff or partners (to maintain what is likely to have been a perception of high competence) or to 'soldier on'. In the latter instance, this might even seem the ethically sound thing to do in the circumstances – trying to do the right thing for the sake of the client and their team/boss/firm. And in any of these instances, in taking steps to try to remedy a situation, they may only succeed in making matters worse.
Solicitors are required to act with integrity. We might reasonably expect that to mean taking responsibility for raising or owning up to mistakes when they are identified. The ethical response, even when unwell, should not change – even with the knowledge that reporting the issue might have serious consequences for the practitioner’s career. That would mean that in each of the instances above, it might reasonably be said that the individual has dipped below the ethical standards expected of solicitors.
But context is all, and it must be here that the question moves from being one of ethics to a consideration of whether not making the right ethical decision to report an issue when unwell – and potentially continuing to try to put things right – can be said to be excusable. This brings into play the other two protagonists in this piece – the firm and the regulator – and engages a range of considerations, the likes of which have been flagged by commenters on the Gazette's coverage of the KP case. These include the following, all of which surely impact on how the relevant players proceed: why was the employer not aware of the employee’s illness; the severity, duration and consequences of the mistakes or potential misconduct in question; the state of the employee/employee relationship, including supervision arrangements.
My next column will consider the position of the final protagonist: the regulator.