Marsh - Risk Dimensions Newsletter Issue 6

Risk Dimensions Newsletter Issue 6: April 2022

In the latest edition of our Risk Dimensions newsletter for solicitors, John Kunzler and Victoria Prescott from Marsh’s Risk and Error Management team discuss the powers of the Health and Safety Executive and the potential implications for law firms who fail to protect employees from work-related stress. There is also an article from Clare Hughes-Williams, a partner at DAC Beachcroft, considering the Solicitors Regulation Authority’s proposed changes to the rules of conduct impacting workplace culture and comments on the firm’s own “Flex Forward” approach to working.

Law firms can face criminal sanctions for work-related stress

Authors: John Kunzler and Victoria Prescott, Marsh

Both criminal and civil law apply to workplace health and safety. Law firms must protect their employees from getting hurt or ill through work. If they do not, then the Health and Safety Executive (HSE) or local authority may take criminal action against the firm. [1]

The duty of firms to protect employees from getting hurt or ill through work includes the duty to identify risks and agree ways to prevent work-related stress and support good mental health.

The HSE defines work-related stress, depression, or anxiety as a harmful reaction people have to undue pressures and demands placed on them at work.

In 2020-2021, work-related stress, depression, or anxiety accounted for 50% of all work-related ill health. In the HSE’s recent analysis published on 16 December 2021, it highlighted that professional occupations were found to have higher rates of stress, depression, or anxiety. The main work factors cited by respondents as causing work-related stress, depression, or anxiety were workload pressures including tight deadlines, too much responsibility, and a lack of managerial support. [2]

The HSE launched a new Working Minds campaign in November 2021 calling for a cultural change across Britain’s workplaces, to ensure psychological risks are treated the same as physical ones in health and safety risk management. Sarah Albion, the HSE’s chief executive said:

“Work-related stress and poor mental health should be treated with the same significance as risks of poor physical health and injury. In terms of the affect it has on workers, significant and long-term stress can limit performance and impact personal lives… The pandemic has highlighted the need to protect the health of employees who have faced unprecedented challenges; the Government is committed to building back better and we want to make sure good mental health is central to this.” [3]

The HSE’s Working Minds campaign is aimed specifically at supporting small businesses by providing employers and workers with easy-to-implement advice, including simple steps in its “5 Rs”: Reach out, Recognise, Respond, Reflect, and make it Routine. Employers and workers wanting to know more about the Working Minds campaign, including the legal obligations, advice, and tools available, can visit this website. There is no doubt that the HSE is focused on giving employers a clear reminder of their duties and could be gearing up for potential prosecutions of organisations failing to manage work-related stress, with inspectors receiving training in the stress management standards and how to enforce them.

Obviously, not all stress is bad, and there is research by psychologists that suggests a certain level of stress can actually promote optimal levels of performance in employees.

In order to meet changing expectations, firms need to be aware of the following issues and points:

• When stress goes beyond a certain level for a sustained period, not only will performance suffer but also the health of an employee. Consequently: • The historic long-hours culture of law firms and the required

“can do” attitude must be challenged where health may be at risk. • In line with HSE’s campaign, a new philosophy of work-life balance needs to be promoted, where employees work to live, rather than live to work. This needs to be a top-down policy with junior lawyers seeing senior management highlighting the importance of a healthy working environment. • High hourly targets set by firms may have negative implications in relation to work-related stress policies in place. • There may be an increased risk of lawyers arguing workrelated stress as mitigation when mistakes/claims and wrongful acts occur. The need for records demonstrating the effective management of employee stress will be paramount in rebutting such allegations, as previously highlighted in our solicitors supervision webinar.

Over the years, there have been a number of highly-publicised incidents of workplace stress associated with law firms, such as in the cases of SRA v Sovani James and Other and the unfortunate suicide of David Latham in 2013.

Going forward, with increased focus on law firm workplace environment by the Solicitors Regulation Authority and numerous studies identifying suicidal thoughts in lawyers as a result of work, law firms need to be alive to the possibility of criminal sanctions where there has been a significant failure in dealing with stress in the workplace.

[1] Health and safety at work: criminal and civil law (HSE) [2] Work-related stress, anxiety or depression statistics in

Great Britain, 2021 [3] HSE launches Working Minds campaign to encourage employers to promote good mental health in work

Setting the standard for culture

Author: Clare Hughes-Williams, DAC Beachcroft

On 8 February 2022, the Solicitors Regulation Authority (SRA) launched a consultation in relation to its proposed changes to the rules of conduct which, if accepted, will impact on law firms’ obligations to ensure that they maintain a positive workplace culture.

The proposals include specific requirements on firms to provide a safe environment for their staff, to treat them with dignity and respect and to ensure that their firms are places where equality and diversity matter. The proposals also set out the requirement to have effective systems of control and supervision for all staff.

The new rules are not by any means a completely new concept. The 2019 Standards and Regulations contained, for example, obligations to supervise and manage staff and to implement proper systems of governance which we interpreted at the time as a move towards greater regulation in this area.

The SRA seeks to introduce two important changes.

First, the SRA’s proposals include the obligation on the part of all staff to challenge behaviour that contravenes the code. This is an efficient way for the SRA to ensure that a positive culture is embedded in firms and that it is “policed”.

Second, the SRA has for the first time explicitly focused on fitness to practise issues partly in response to the growing number of lawyers who are the subject of professional disciplinary proceedings and unfit even to attend the tribunal hearing.

The SRA recognises that the role of a solicitor can be stressful. It is inherently deadline driven and many of the pressures that we face as a profession have increased rather than abated since the pandemic took hold. The immediacy of remote meetings has increased the pace, and supervision has proved to be a challenge for all law firms, with some responding more effectively than others.

The SRA is concerned that solicitors who are unsupported and experiencing stress cannot deliver their best service to clients. While the proposals for change are undoubtedly, in part, aimed at protecting lawyers from stress, at the heart of the new rules is the SRA’s desire to protect the public from the difficulties that arise when a solicitor’s well-being is compromised.

At DACB we identified the need to adapt to the changing workplace environment and to support our colleagues to an even greater extent. We try hard to get this environment right and recognise that we learn and grow from our efforts. While we do not claim to be perfect, we are trying to meet this challenge, and thought it might be useful to share some of the changes we have implemented.

We try hard to promote a culture that enables our colleagues to enjoy their work and their life outside work, and with this in mind we consulted with all of our colleagues to try to define what it means to work at DACB, as we recognised the need for change.

We also responded to the changes that came with the pandemic and associated lockdowns by introducing Flex Forward, which is about when, where, and how we work.

At the heart of this philosophy is the ability for our colleagues to plan their days to accommodate their needs as individuals while being guided by our core principles — supporting our clients and each other, acting with determination, pursuing creative and sustainable solutions, and being clear in everything we say and do.

As we adjust to post-COVID-19 life, it will take time for our colleagues to find the balance between working at home and in the office that works for them. There are so many reasons to come to the office — to collaborate and interact with your team and to take advantage of the support of senior colleagues. At the same time, it is quite clear that many of us work as effectively from home.

This new hybrid way of working depends for its success on mutual trust. It is a two-way street and we hope that it reflects the SRA’s requirement that we all treat each other with respect and dignity.

Meet the authors

John Kunzler

Managing Director United Kingdom

Victoria Prescott

Senior Vice President United Kingdom

Clare Hughes-Williams

Partner, DAC Beachcroft United Kingdom