Anti-Bullying Week 2023 will take place from 13-17 November, starting with Odd Socks Day on Monday. Odd Socks Day is when schools, workplaces and individuals join together to show that it is OK to be different and to stand up against bullying and discrimination. The concept that it is OK to be different is unproblematic. Standing up to bullying, while encouraged, is a different problem. Is it OK to stand up to bullying?
As a disability discrimination litigator, I routinely see cases where lawyers are bullied by firms or partnerships when they become ill. I have acted for many lawyers over the years. The issue seems to be that if you are not billing to the requisite standard, you are no longer useful. This is particularly harmful to individuals who have always delivered and feel they are being let down by their firms. For those experiencing common mental health conditions such as depression and anxiety, to be made to feel unwelcome is another blow which can exacerbate illness and prevent recovery. Clearly, there are firms that do support staff, but those do not come across my desk.
As a LawCare champion I am acutely aware of the great work it does to support legal professionals. What alarms me is the extent to which there is a toxic culture in our profession. Coming from a career in the City I have always marvelled at how law could be worse than banking. I have had enough clients over the years to support this proposition. During the first nine months of 2023, LawCare has seen a 24% increase in people contacting them for support. If things are getting better in the profession, why is this number getting bigger?
New guidance from the Solicitors Regulation Authority earlier this year concerning the risks of failing to protect and support colleagues was welcome. The regulator should police the profession and act against firms that fail to take appropriate steps to look after wellbeing. It is too early to tell whether this guidance has teeth and if firms are taking it seriously. Time will tell.
I have done work with consultancy Conduct Change. It reports that a staggering 27% of UK employees have experienced workplace bullying or harassment and of those bullied 53% did not report it. It is one thing to acknowledge you have been bullied at work, but reporting it is fraught with difficulty. What can be done in the profession to encourage sufferers to address bullying at work and are the legal protections in place adequate?
I should state that I have no answers. The legal protections around bullying at work are weak if the bullying is not connected to a protected characteristic. There is no standalone protection for bullying. The only options a solicitor faces to address bullying at work are to report it and see if management will support them, or to resign claiming constructive dismissal on the basis that the workplace has become intolerable. Neither is an attractive option. If a solicitor resigns, there is then an obligation to mitigate the loss by finding another position. Only those too ill to work are likely to have a claim with any value.
When advising clients about bullying and whether to report it, my advice is heavily caveated. It should not be the case that raising a grievance makes matters worse, but sadly often it does. Anyone with the temerity to challenge bullying must know before they raise an issue that they are embarking on a bumpy road. They will be accused of overreacting and find that nobody else in the firm has witnessed anything to prove that they have been bullied. It is a lonely road and it rarely ends well. As a lawyer it is extremely frustrating to have to tell lawyer clients that their options are limited. For anyone concerned about their reputation in the legal market litigation is not an attractive option to raise a complaint. Surely there is something that can be done to stop the bullying.
Employers routinely adopt anti-bullying policies but fail to implement and police them. Before the pandemic I acted for a solicitor in a City firm who was being bullied by her manager. Things got worse as soon as she raised her head above the parapet and she ended up leaving the firm and, sadly, the profession. I could not achieve what she wanted, which was to return to a safe working environment. The odds and the firm were set against her.
Part of the problem with this conduct is the existence of settlement agreements. A settlement agreement with confidentiality obligations means that poor conduct never sees the light of day. I am not suggesting the elimination of settlement agreements – they work for victims as much as for employers – but should there be an overarching regulatory obligation to report settlements which emanate from bullying? Unless firms become more accountable this conduct will continue. It is not a good look for any law firm. Unless there is accountability will behaviours change? Addressing the toxicity of workplace cultures is the only way forward.
LawCare is the mental health charity for the legal sector providing free, confidential, emotional support to anyone working in the law. To contact LawCare, call 0800 279 6888, email email@example.com or use the live online chat at www.lawcare.org.uk
Karen Jackson is managing director of didlaw, a LawCare champion and former trustee of the Mental Health Foundation