Wellbeing and the workplace
Work place stress is a hot topic and the newly implemented Standards and Regulations for solicitors and the role of the Health and Safety Executive (HSE) will place more responsibility on employers to safeguard employees.
Under pressure
Last year’s injury statistics revealed that stress has now become the most common reason for time off work. A LexisNexis Bellwether study https://www.lexisnexis.co.uk/bellwether/stress-in-the-legal-profession.html reported that two thirds of the solicitors surveyed admitted that they had experienced high levels of stress at some point in their careers.
In recent years, there have been a number of reported decisions by the Solicitors Disciplinary Tribunal (SDT) involving solicitors who were under extreme stress and as a result acted in breach of the Code, for example, by backdating documents to make it look as though they were up to date with their work when this was not the case.
Unfortunately, the SDT does not show leniency even where mental health issues have led or contributed to the alleged misconduct. This may seem harsh but the SDT has to consider whether the solicitor is fit to practise and this must be in doubt if the solicitor has taken to forging documents.
Pressure of work or stressful working conditions cannot ever justify dishonesty by a solicitor. A significant factor for the SDT, however, when deciding sanction will be the nature and extent of the dishonesty and the degree of culpability.
For examples of the approach taken by the SDT in such cases see SRA v James, McGregor and Naylor [2018] EWHC 3058 (Admin). In the McGregor case the SDT found that at the time of the misconduct the solicitor concerned was under a very high level of pressure both at work and at home. The SDT recognised that there were exceptional circumstances and they decided that it would be wrong to strike her off as result. However, their decision was overturned on appeal as the court held that unless the work stress or mental health issue had only led to a one-off act of dishonesty or a single “moment of madness” the circumstances would not be exceptional.
In the case of SRA v James a solicitor made a series of nine misleading statements to the client about the current position on the file. Whilst the SDT accepted that the solicitor’s firm was a very difficult place to work nevertheless it found that the appropriate sanction was a period of suspension of two years and a Restriction Order. However, on appeal, it was concluded that there were no “exceptional circumstances” and that strike off was the appropriate sanction. The Administrative Court focused on the extent and nature of the dishonesty rather than personal mitigation.
In the very recent case of SRA v Matthews https://www.solicitorstribunal.org.uk/sites/default/files-sdt/12005.2019.Matthews_0.pdf, a junior lawyer was struck off for leaving a briefcase on a train and then lying about it. Claire Matthews argued that a mental health condition had affected her ability to deal properly with the mistake. While the SDT considered Ms Matthews’ mental health, it concluded that it did not leave her unable to comprehend the facts and found her to be dishonest as a result. Ms Matthews is appealing the decision on the basis that the SDT failed properly to take into consideration her mental health and erred in its finding of misconduct and dishonesty as a result.
What difference will the new Standards and Regulations make?
Firms will now have to take steps to protect their staff if they are to avoid regulatory scrutiny themselves. This is because the new regime gives the SRA the power to take action against firms for failing adequately to supervise staff. Areas of scrutiny for the SRA could well include a failure by the firm to properly identify staff who may be facing difficulties in dealing with their work.
Firms need to ensure that they comply with the new rules by fostering a positive culture of compliance and risk management with regular training sessions to enable staff to raise issues in a safe environment without fear of criticism.
The role of the HSE
Under Section 2 of the Health and Safety at Work Act 1974 an employer is to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all employees. This extends to psychological harm and work related stress as well as physical harm.
Identification of potential stressors is key and HSE guidance recommends that organisations have a policy for managing work related stress and carrying out a Stress Risk Assessment. There is an abundance of guidance on the HSE website including a work book to assist managers and businesses with their duties.
Any employer who fails to implement appropriate policies to safeguard their employees and minimise the impact of workplace stress is likely to receive increased attention from Regulators such as the SRA and the HSE. The SRA has the power to take action against firms that fail to comply with the new Standards and Regulations and the HSE has the power to prosecute employers whose practices, procedures or activities have caused injury or harm to workers.
The HSE has also recently updated guidance on lone working to highlight the potential risk of psychological harm as well as physical harm to lone workers. This is a timely guidance as employees continue to monitor the evolving coronavirus situation.
