It is in the interest of firms and the legal profession to promote a safe, healthy and fair work environment. Bullying and harassment can create serious problems for firms and employers.
- increased use of sick leave;
- high staff turnover – increased recruitment and training costs, impact on products, services and clients;
- demoralising impact on rest of team;
- low morale and reduced productivity;
- poor performance and increased mistakes;
- direct and indirect financial costs, e.g. through employment tribunals; and
- damage to the organisation's reputation.
One of the particular problems in the legal profession is the reluctance to report bullying and harassment. The research conducted in 2011 into bullying and harassment in the Scottish legal profession found that a common theme was partners bullying lawyers and trainees on their performance:
“In a high-pressured environment where many managers lack the time or skills to manage performance effectively, a bullying approach may seem like the best or only way to boost performance.” Preventing Bullying and Harassment in the Profession study 2011
One of the key measures to reduce bullying as a form of performance management is to ensure that lawyers who are promoted into roles involving supervision, should be given training in people management before they supervise staff.
Other key themes identified in the research were:
- training by humiliation;
- repeat or patterned victimisation;
- bullying not addressed because senior people implicated; and
- bullying under-reported because of fear of losing job/traineeship
It may also be viewed as easier in some firms to turn a blind eye rather than address such behaviour, particularly if the person involved is seen as important in other ways, such as being senior or key to business development, or generation of fees. We would encourage firms and organisations to tackle all examples of bullying irrespective of the personalities involved and strongly believe that doing so will reap rewards in terms of positive engagement from all of your people, who will feel more secure in their work environment.
There are proactive steps which firms can take to discover whether there are problems around bullying or harassment which are outlined below:
Staff surveys can be an effective means of taking a temperature test within an organisation to understand whether there are any pockets of bullying or harassment within teams, or whether there are wider issues. Equally as important within this process is acting on problems reported from the survey information by carrying out action planning. Future surveys should review whether progress has been made in particular areas.
This may be the only time a person is willing to divulge that they have left because of the behavior of a particular person. Think carefully about who can see these interviews and who may have the power to edit the details.
Employees do not always feel able or confident enough to complain, particularly if the harasser is a manager or senior employee in the business. It is, therefore, important for employers to ensure that employees are aware of the options open to them for dealing with bullying and harassment. A clear policy or statement on bullying and harassment is the first step.
Creating a policy can and should be a simple process for all employers, whether a large or small firm, or a legal team. See our model policies.
It should include:
- a clear statement from senior management that bullying and harassment will not be tolerated, and/or a clear statement of the firm's commitment to working towards a work environment in which all employees are treated fairly and with respect and dignity by fellow employees, managers, partners and clients alike.
- examples of unacceptable behaviour including treatment by clients and customers that will not be tolerated; and
- a statement that bullying and harassment may be treated as disciplinary offences.
To ensure that the policy is implemented, firms should provide written guidance and/or procedures that include:
- how to make a complaint and who it should be made to;
- a statement that complaints will be dealt with promptly, sensitively and confidentially;
- reference to grievance procedures (formal and informal), including timescales for action;
- an explanation of the investigation process, outlining timescales;
- be clear that unfounded allegations made maliciously will be investigated and dealt with in accordance with disciplinary procedures.
Managers should always be chosen on the basis of their ability to manage rather than on, say, a time-served basis. Employers should provide appropriate training for managers not only regarding the policy and the process but also how to deal with the victim and the person accused of bullying or harassment. Training should cover the fact that employees may be held personally liable for harassment and named as a party in discrimination proceedings in the Employment Tribunal.
Effective training should build awareness, knowledge and skills around bullying and harassment and creating a workplace culture of dignity and respect.
An effective way to provide training in this area is to integrate the topic into other trainings such as:
- managing performance
- effective communication
- conflict styles
- managing and resolving conflict
- managing teams
- unconscious bias
An effective response to a complaint of bullying or harassment is critical to early resolution and minimising the destructive impact of the conflict. Firms should consider having a senior person available to deal with any complaints from all members of the firm. That person has an important role in generating trust in their role, and ensuring that it is understood they will be someone who will deal with all complaints fairly.
Effective responses include:
taking the complaint seriously
investigating the complaint promptly and objectively
A reasonable investigation would include the impact of the alleged behaviour and the perception of the complainant. Harassment/bullying may be perceived differently by different people. Behaviour which is considered bullying by one person may be considered firm management by another. It is, therefore, important for employers to gather and review the evidence and ask themselves whether what has taken place could reasonably cause offence.
if the complaint by your employee involves the employee of a client you will have to consider how to involve the client in investigating and resolving the issue.
For other third party harassment complaints, it will be necessary to consider how they can be tackled, for example by considering using their employers’ complaints procedure, or by developing an “Unacceptable Actions by Service Users Policy”. Such a policy can be used to manage the behaviour of and contact with third parties with whom your staff are required to interact.
exploring possible ways to resolve the issues
In some cases it may be possible to deal with the issue informally. Sometimes people are unaware of the effect that their behaviour is having. An informal discussion with agreement that the behaviour will cease, may resolve matters.
where an informal resolution is not possible, the employer may decide that the matter is a disciplinary issue which needs to be dealt with in accordance with the organisation’s disciplinary policy.
As in any disciplinary issue, it is important to follow a fair procedure. ACAS publishes a Code of Practice for Discipline and Grievance which sets out basic and practical guidance to employers, employees and employee representatives. This can be found at: http://www.acas.org.uk/index.aspx?articleid=1774.
It is important to note that in any disciplinary procedure the employee must be given fair notice of the allegations and the evidence which supports the allegations.
providing appropriate resources and options such as mediation, counselling and training.
Employees may find counselling and mediation helpful and employers may wish to use the services of external companies and organisations who offer this service. Larger organisations may wish to consider training their own in house counsellor or mediator.
Remember – behaviour such as bullying and harassment can be viewed as professional misconduct.
We would encourage anyone to report such conduct to the Scottish Legal Complaints Commission. The Commission has a role in acting as a gateway to the legal complaints system, and will refer complaints of professional misconduct to the Society to investigate and act upon if appropriate.
ACAS provides on-line guidance to employers as well as employees, and provides training for managers, supervisors and HR professionals to develop the necessary skills to deal with employment relations issues www.acas.org.uk
Business Gateway provides practical help, advice and support for new and growing businesses in Scotland. There is advice available on employing people. www.bgateway.com