Practice Management analysis: Following the International Bar Association’s recent findings on the alarming prevalence of bullying and harassment within the legal profession, the spotlight has turned onto law firms and the responsibility they bear for fostering this culture. Harriet Bowtell, senior associate at Jones Chase Employment Lawyers, examines the endemic problems within the profession, and discusses what law firms can do to clamp down on harassment and bullying in the workplace.

The levels of bullying in the UK—62% of female and 41% of male respondents—are higher than the international average of 55% and 30%. Why might this be?

The legal profession in the UK is steeped in tradition and history. The dominating role that men and the concept of masculinity and hierarchy have played within the profession since its inception, although diminishing, is unfortunately still palpable.

The Solicitors Regulation Authority (SRA) assessed data collected in 2017 from law firms regulated by the body in England and Wales. Based on this data, although women made up 48% of lawyers in law firms, they only made up 33% of the workforce at partner level. The ratio of male to female equity partners—ie the decision makers in firms in the UK—is even more disparate.

Although there are many firms and chambers who recognise the importance of diversity, they are unfortunately hindered by seemingly high levels of inappropriate behaviour in the profession generally, which comes from the top down. This, coupled with the hypercompetitive work culture that this industry is infamous for, appears to be a breeding ground for bullying behaviour.

The report cites ‘chronic underreporting’ of incidents—to what extent do concerns around career progression and firm hierarchy exacerbate the problem? Are there any other reasons for underreporting and how can they be combated?

Obtaining a training contract from a UK law firm is a real source of pride for trainees. Having undergone a rigorous and competitive process involving completing a lengthy online application, sitting tests and daunting interviews, many trainees then take part in vacation schemes throughout which they are assessed. At the end of this gruelling scheme, trainees are formally interviewed for precious places at firms.

What follows is a two-year training contract at the firm with no job security at the end. Understandably, employees are concerned with toeing the line, going above and beyond, and hitting billing targets. A culture of fear is established from the very start of young lawyers’ professional lives. It becomes near to impossible to say no to senior colleagues who could quite easily take everything you have worked for away from you.

The same is true during subsequent years of lawyers’ careers as they look to climb the ladder. Many keep silent because such incidents are endemic at the workplace and seen as acceptable. Speaking out could result in not being believed and/or being ostracised. Lawyers are also generally not encouraged to talk about or show their emotions out of fear of being seen as weak. All of these factors result in ‘chronic underreporting’ of incidents of bullying and harassment.

What are law firms already doing to prevent the issues of bullying and harassment, and what more needs to be done? Is this something firms are taking seriously?

Many law firms already have anti-bullying and harassment policies in place. They conduct diversity training and ensure staff know how to raise complaints confidentially. However, these steps alone are not going to reduce levels of bullying and harassment unless there is a corresponding change in culture. If staff are fearful to speak out, the behaviour will never get reported.

Firms should be going out of their way to encourage people to speak out and report incidents. Those responsible should be subjected to appropriate disciplinary action, even if they are senior members of the firm, rather than issues being swept under the carpet and allowed to persist. A firm needs to be seen to be taking this issue seriously so that staff are not afraid to raise complaints and are reassured that there will be no repercussions for them. Firm culture needs to shift to zero tolerance, which must come from the top.

What are the risks to an organisation which does not prevent bullying and harassment? What consequences should those professional organisations that fail to clamp down on bullying and harassment in the workplace face?

First, reputational damage to the organisation can be huge. If an organisation does not deal with systematic bullying and harassment, it will lose many good staff and may then have trouble recruiting. Given that a law firm is only as good as its people, this should be a real concern. Such a reputation may also impact on a firm’s ability to gain and keep clients who are becoming increasingly interested in how a firm treats its own staff. All of these issues affect the profitability of the firm.

Another clear risk is that of legal claims in the employment tribunal by staff for discrimination and constructive dismissal. Claims can be brought against both the alleged harasser and the employer by way of vicarious liability. Acts of sexual harassment may also be a criminal matter. Such claims are costly, not only in terms of legal fees, but also management time and reputational damage. The firm may also face investigation by the SRA if allegations are not dealt with appropriately and a culture of harassment is not addressed. Individual lawyers may be subjected to professional disciplinary action.

As well as the wellbeing of their staff, what other issues should law firms consider when establishing safeguards around this—eg their roles as advisers on the #MeToo movement?

Law firms have a key role to play as advisers to their clients on issues raised by the #MeToo movement. However, it appears that the legal profession itself is falling behind in terms of creating a culture of dignity, respect and openness. If law firms are to have the respect of their clients as advisers on this issue, they must practice what they preach, or risk being seen to be hypocritical. In wake of the #MeToo movement, organisations looking to instruct firms will be increasingly conscious of the image of their own legal advisers. Lawyers must also be mindful of the SRA’s warning notice and the Law Society’s practice note around the drafting of non-disclosure agreements and confidentiality clauses in an employment law context. This guidance is relevant to lawyers’ roles as advisers but also how they manage issues internally, ensuring that inappropriate pressure is not placed on staff to keep complaints quiet.

Interviewed by Rosie Johnson.

The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.