From rulebook to reality

In this edition, Emma Williams examines the Solicitors Regulation Authority (SRA) workplace culture rules one year on from their introduction. She explores the underlying assumptions, addresses the challenges, and shares practical tips on how to navigate the new framework and effect meaningful change.

In April 2023, the SRA implemented new workplace culture rules. For the first time, these rules established an explicit regulatory mandate requiring fair and respectful treatment of colleagues, prohibiting bullying, harassment, or unfair discrimination, and obligating managers (effectively, law firm partners) to challenge any behaviour failing to meet this standard.

Whilst some critics initially lamented the overstep of the regulator into what might have been seen as the domain of Human Resources (HR) and of a firm’s internal management, in the face of incontrovertible evidence, the regulatory interest in ethics and conduct shows no indication of abating. The figures speak for themselves. In 2023, LawCare saw a 95% increase in the number of people saying that workplace bullying, harassment, or discrimination was their primary reason for seeking support. Viewed through that lens, there is nothing controversial in the SRA’s approach.

One year on from these new rules, what has changed??

What have we learned?? And how far do we, as a profession, still have to go?

I suggest that in order to fully understand the challenges presented by this new regulatory expectation, it is first necessary to address the following widely held assumptions:

• All lawyers are conversant with the SRA Principles and the SRA Codes of Conduct (not to mention the Guidance). They’re not. Lawyers focus on what they need to know in their highly specialist areas of practice. To assume that all lawyers have an encyclopaedic knowledge of regulatory requirements is na?ve at best.?(A point I will return to below – this is not necessarily their fault but is attributable to the way in which ethics and matters of professional conduct have traditionally been taught in this jurisdiction.)
• All lawyers are good managers – of business and of people. They aren’t (necessarily).
• All partners have the innate skills to supervise and to lead. They don’t.
• All those with supervisory responsibilities have been trained accordingly. They haven’t.
• All lawyers are effortless, expert communicators. They aren’t.?
• Everyone in a law firm reads policies. They don’t. Having a policy just means that you have a policy. That is only part of the solution. Who in the firm knows about the policy??Have they been trained on it??What are the disciplinary consequences for those who ignore or act in contravention of the policy? How frequently is the policy reviewed/updated/cascaded?
• What we have always done in the profession is enough to see us through. It is not.

In that context, I set out below my thoughts from the last year with some practical tips as to how to best navigate the new framework and to effect meaningful change.

1.? A regulatory priority for the SRA

Paul Philip, the SRA’s Chief Executive, has addressed in clear terms its “duty to act…if poor working cultures start to impact staff wellbeing, behaviour and ultimately standards of service to the public.”?Perhaps unsurprisingly, the SRA has not been slow to use its new powers in respect of alleged breaches and has identified solicitor wellbeing and workplace bullying and harassment as being key enforcement themes. According to a report in The Telegraph on 14 March 2024, the SRA is currently investigating 24 instances of workplace bullying and harassment.

2.? Supervision

We need to rethink everything we thought we knew about supervision. The act of supervision has traditionally been solely in relation to overseeing the work product. The supervisor’s role would be to take charge of or to direct the work of a more junior colleague and, in essence, provide a checking function to ensure quality control.?Crucially, however, we now know that the SRA considers proper supervision to “be more than just checking that staff are progressing client matters” and that firms need to, at the very least, “regularly monitor and assess individuals’ workloads and capacity and competence to do the work”.?This requires a significant shift in mindset regarding both the nature of supervision and the skill set and training required for supervisors.

3.? The interplay between HR and Risk & Compliance

It is clear that to address the challenges, all firms must be prepared to think and act differently within their existing structures. Iain Miller – a man far wiser than I – has spoken of “navigating the complexity between HR and those responsible for regulatory risk” and that matters relating to workplace culture are “no longer just the preserve of the HR team”.?This will inevitably require a level of collaboration.

4. Ongoing commitment ?

Our commitment to ensuring that we have in place the requisite policies, controls and procedures is an ongoing one.?If you have not reviewed or updated your policies since the new rules were implemented, then this is your signal to make it an annual event.

5. Training and education

As highlighted above, training is key. Prioritising tailored, regular (at least annual) training and education in leadership, management, and supervision (see above) is essential. This includes adherence to the firm’s policies and procedures as well as a broad understanding of the SRA Principles and Codes of Conduct.

6. Collective responsibility

Tone from the top is crucial, but this goes far deeper than that. Tone from the middle is arguably just as important, with the need for collective accountability for the importance of creating a positive and supportive environment that promotes employee wellbeing and engagement.

Our challenge across the profession is to encourage connection with peers, managers and leaders to promote better communication and collaboration. In other words, to create and maintain psychological safety in the workplace.

The SRA expects to see a no blame culture with an open, speak up environment. To do this, firms will need to foster regular engagement with employees and act on feedback, whilst accepting that much of this will inevitably involve difficult conversations and self-reflection in a profession not known for its adaptability to change.

In the meantime, as we navigate our way through the new normal, the profession awaits the first regulatory sanction for breach of the new rules. Buckle up, this may be a bumpy ride!

Emma Williams is a LawCare Trustee and the Director of Risk & Compliance at Simpson Thacher & Bartlett LLP.