Workplace bullying in law firms – a new frontier?
Richard Fox, Jessica Clay and Lucinda Soon discuss what constitutes workplace bullying in light of the recent high-profile case against former justice secretary Dominic Raab
In the past month we have travelled a long way in a short period of time with regard to the area of bullying allegations at work. The most high-profile case to have hit the press on this matter is that involving the former justice secretary and lord chancellor, Dominic Raab. However, it is a matter that remains at the fore, not least because of a recent TUC poll, which found that three in five of the women surveyed reported that they have experienced sexual harassment, bullying or verbal abuse at work.
Law firms are not immune to this issue, as notably highlighted in the report issued by the International Bar Association (IBA) in May 2019, analysing the findings of the largest ever global survey on bullying and sexual harassment in the legal profession.
These recent developments and, in particular, Adam Tolley KC’s carefully drawn report on the allegations against Dominic Raab - a former practising solicitor - has at last shone the spotlight on two major issues with this type of claim.
The first issue is that, for many years, it has not been entirely clear what constitutes ‘bullying’ and how it can be defined. Although some guidance has been offered, for example, in the ACAS guidance on handling a bullying, harassment or discrimination complaint at work and in the IBA report (which stated that bullying is typically understood as ‘exposure to aggressive behaviour or incivility by supervisors, colleagues or third parties’), there is no universally accepted legal definition of bullying.
Secondly, we have never had a specific piece of legislation that outlaws acts of bullying. This has had the consequence that such claims are generally brought as something else, most often as part of a discrimination claim before an Employment Tribunal in reference to one of the ‘protected characteristics’ under the Equality Act 2010, such as sex, race, disability and age. In many cases this could be seen as a somewhat artificial construct as, in truth, the real complaint is of bullying behaviour pure and simple, not behaviour brought about by an act of discrimination. Even more difficult is the possibility of bringing a claim in respect of bullying behaviour in the civil courts under the Protection from Harassment Act 1997 (for the statutory tort of harassment, which is difficult to do, not least because the conduct complained of must be of sufficient seriousness that it would also amount to a criminal offence) or, in very extreme cases, as a personal injury claim.
Much of this may now be set to change – in all workplaces, including law firms. Law firms, of course, can have similar ‘high octane’ environments to ministerial departments (the context of Dominic Raab’s case) where standards are high and issues can frequently arise when conversations, discussions and appraisals come to address whether employees have met those standards or not.
The complaints against Dominic Raab
On 23 November 2022, Adam Tolley KC was appointed by the Prime Minister to carry out an investigation into the facts surrounding the formal complaints that had been made about the conduct of the then deputy prime minister and secretary of state for justice. At the time, and especially more recently, there was an enormous focus on whether the outcome would mean that Raab would need to resign from his post or be dismissed. There was also much discussion around whether Raab was a demanding person and a perfectionist and, therefore, whether he was entitled to tell those working for him when he perceived they were not meeting his high standards.
What was not generally expected, however, was that in delivering his report, Tolley would take such time and care over defining what exactly was meant by the term ‘bullying.’ He correctly identified that this was going to be critical to the findings he would ultimately make about Raab’s conduct in his report.
Over five pages in his report, Tolley focused specifically on this issue. He acknowledged that ‘bullying’ is not a legally defined term and that it is not a term for the purposes of the Ministerial Code either. But he did draw attention to the fact that it is a term that was examined in a case that had come before the High Court in 2021 in R (FDA) v Prime Minister and Minister for the Civil Service [2021] EWHC 3279 (Admin). That was in the application by the civil servants’ union, the FDA, for judicial review of the approach of the then prime minister, Boris Johnson, to a complaint about the conduct of the former home secretary, Priti Patel.
In that case, the court accepted that, for the purposes of the Ministerial Code, conduct would constitute bullying if it could be characterised as:
- offensive, intimidating, malicious or insulting behaviour (whether or not the perpetrator was aware or intended that the conduct was offensive, intimidating, malicious or insulting); or
- abuse or misuse of power in ways that undermine, humiliate, denigrate or injure the recipient.
Tolley also approved the approach of Sir Alex Allan, Independent Adviser in the Priti Patel case, that legitimate, reasonable and constructive criticism of a worker’s performance would not amount to bullying. He said bullying could be defined as “intimidating or insulting behaviour that makes an individual feel uncomfortable, frightened, less respected or put down.”
This has reignited the debate around the absence of a bullying act which could, and arguably should, codify exactly where the line should be drawn between the kind of constructive criticism that all demanding workplaces can thrive on, and bullying that can have a corrosive effect on those who work in those environments.
Of specific relevance to law firms, however, is the fact that at almost exactly the same time as the Dominic Raab matter, the Solicitors Regulation Authority (SRA) was taking matters into its own hands in order to spell out in no uncertain terms its expectations on solicitors and firms that bullying behaviour will not be tolerated.
Increased reports of bullying in law firms
The SRA’s interest in bullying in the legal sector can be traced back to 2019 when it reported in its Upholding Professional Standards Report 2019/2020 that a new theme had emerged in terms of the types of concerns it receives and investigates. For some time, sexual harassment in the workplace had featured on the SRA’s radar. Now it seemed, workplace bullying was also on the rise. At the time, the SRA stated it was investigating almost 140 matters relating to allegations of bullying.
Recognising that a bullying or toxic workplace can impact significantly on the wellbeing and mental health of a firm’s staff, and can lead to mistakes being made and poor outcomes for clients, the SRA has taken progressively firmer steps to address the issue.
Bullying will not be tolerated
In February 2022, the SRA published findings of a review that would trigger a series of significant regulatory developments over the following year. The Workplace Culture Thematic Review was the first of its kind to have been conducted by any legal services regulator in England and Wales. Among its findings, concerns were reported around the occurrence of unacceptable, inappropriate and/or uncivil behaviour at work. Harmful, counter-inclusive behaviours were noted to include microaggressions, discrimination, harassment, inappropriate sexual conduct and bullying.
The review precipitated the publication of new SRA guidance for law firms on the workplace environment. The first iteration of the guidance was published alongside the review report in February 2022. It made clear that both individuals and firms are required to act in a way that encourages equality, diversity and inclusion, and that paragraphs 1.2 in the SRA Code of Conduct for Solicitors, RELs and RFLs and the SRA Code of Conduct for Firms, respectively, provide that individuals and firms must not abuse their position by taking unfair advantage.
However, the SRA’s regulatory arrangements – as they existed at the time – were somewhat limiting for the SRA, hindering its intention to clamp down on the prevention of poor workplace behaviours, such as bullying. Taking action against bullying and serious failings in the work environment that have allowed bullying to take place is a reactive, after the event, measure. In line with the SRA’s appetite to initiate cultural change within the firms it regulates, it became clear that a proactive obligation on individuals and firms to prevent bullying in the first place was required.
Fair treatment of colleagues: a new regulatory obligation
The missing piece in the SRA’s regulatory arrangements pre-April 2023, in relation to preventing and addressing unfair treatment in the workplace, was succinctly presented in the SRA’s application to the Legal Services Board (LSB) to amend its Codes of Conduct. Referring to the fact that a requirement to treat people fairly at work was absent from the Codes of Conduct, the SRA laid out its case for the proposed introduction of two new standards, one for individuals and the other for firms. These new standards came into effect immediately upon the LSB’s approval of the SRA’s rule change application on 4 April 2023.
Accordingly, solicitors now have a regulatory obligation under paragraph 1.5 of the Code of Conduct for Solicitors, RELs and RFLs to treat colleagues fairly and with respect, not to bully, harass or discriminate unfairly against them. Additionally, those with management responsibilities (such as law firm partners) are required to challenge behaviour that does not meet this standard. Challenging behaviour of this nature could include the manager raising their concerns directly with the person who they consider has behaved unfairly, or reporting the behaviour to another senior colleague such as the firm’s compliance officer for legal practice (COLP), the managing partner or the firm’s HR director.
Further, firms are now required under paragraph 1.6 of the Code of Conduct for Firms to treat those who work for and with them fairly and with respect, and to require that their employees meet that standard.
A month after the new rules came into effect, the SRA updated its guidance. In addition to reinforcing the message that bullying and other types of counter-inclusive behaviours will not be tolerated, the SRA provided clarity around the new standards and what it will consider to be bullying, harassment, discrimination and victimisation.
What amounts to bullying?
In relation to bullying, the SRA acknowledges that there is no legal definition for this type of behaviour, but goes on to set out the definition it will apply to reports that it receives.
‘We and other regulators consider bullying to include unwanted behaviour that is either:
- Offensive, intimidating, malicious or insulting; or
- An abuse or misuse of power that undermines, humiliates, or causes physical or emotional harm to someone.
Bullying can be a regular pattern of behaviour or a one-off incident. It can happen face to face or remotely.’
This definition bears a striking resemblance to Tolley’s definition of bullying for the purposes of the Ministerial Code we discussed earlier. In fact, the definitions are almost identical. While the debate rumbles on around the absence of a legal definition for workplace bullying in primary legislation, solicitors and law firms regulated by the SRA should take note of the new code standards and the definition of bullying.
Where allegations concern complaints of bullying raised with a firm over a period of time involving a number of staff and inadequate action taken by the firm as a result, or evidence that bullying behaviour has not been brought to light sooner because of the firm’s culture and/or inadequate reporting and disciplinary procedures, the SRA is likely to take action and now has the reinforced power to do so.
An uncertain future
Regardless of the uncertainty surrounding allegations of bullying in workplaces generally, what will amount to bullying behaviour is now defined from a regulatory perspective for solicitors and law firms. The SRA may be seen to be paving the way for parliamentary intervention, but even for solicitors and law firms, the future is anything but certain.
The new code provisions place unequivocal obligations on solicitors not to bully colleagues (scoped broadly to include contractors, consultants, barristers and experts instructed by the firm), on managers to challenge bullying behaviours when they see it, and on firms to take positive steps to prevent bullying in the workplace. However, where the SRA draws that line in the sand between behaviour that falls within its definition of bullying, and where it does not, remains unclear and will ultimately depend on the facts of each case it considers.
Richard Fox is a senior consultant in the employment team, and Jessica Clay is a partner and Lucinda Soon a legal director in the regulatory team at Kingsley Napley
kingsleynapley.co.uk
