Fair is fair: understanding the SRA ‘fair treatment’ rules

What are the new rules?

The following requirements will be added to the Solicitors Regulation Authority (SRA) Code of Conduct for Solicitors, Registered European Lawyers and Registered Foreign Lawyers (the duties which apply to all SRA-registered lawyers working at the firm):

• “You treat colleagues fairly and with respect. You do not bully or harass them or discriminate unfairly against them.”
• “If you are a manager [such as a partner or director] you challenge behaviour that does not meet this standard.”

In addition, there is a new duty on the firm itself in the Code of Conduct for Firms, which in practice will mean the partners (who all have a responsibility to ensure the firm’s compliance with the SRA’s rules) and the compliance officers must work to ensure the firm acts in compliance with the new requirements.

This requires the firm to “treat those who work for and with you fairly and with respect, and do not bully or harass them or discriminate unfairly against them. You require your employees to meet this standard.”

What is the SRA’s rationale?

These new additions cover similar ground to the Equality Act, which prohibits discrimination and harassment by all UK employers.

Their introduction marks a departure from one of the principles underlying the 2019 Handbook, which cut out rules the SRA believed were duplicating the general law applicable to all businesses.

However, firms should not assume that their obligations to the SRA are the same as their duties under employment legislation. The SRA rules require partners and the firm to take a pro-active approach to deal with unfair treatment, bullying harassment or discrimination.

Equally, the SRA’s focus is on workplace culture as a whole, and not just the relationship between the firm and the individual employee.

The rule changes follow the SRA’s Workplace Culture Thematic Review in early 2022, which considered the character of working environments in the legal industry.

Many respondents to the Thematic Review felt that their firm did not have a positive culture and highlighted concerns such as long working hours, pressures from clients and workloads, targets, and worries in relation to reporting mental health issues and instances of bullying.

Top tips for firms

In order to build a positive workplace culture, the SRA expects firms to take a pro-active approach to support employee wellbeing by minimising practices and behaviours that could lead to poor mental health or encourage professional misconduct.

Firms should provide employees with support to manage their workload and mental health, implement effective supervision arrangements, provide relevant and constructive feedback, and have in place adequate reporting systems for employees.

Failure to do so could lead to rule breaches, failure to manage client demands, or unwillingness to report mistakes.

Firms should consider the following measures:

1. Ensure all partners and those involved in the management of the firm are aware of the positive obligation to challenge behaviour that does not meet the new standard. At a minimum this ought to involve circulating a written note or summarising the new rules and their key implications and a meeting or training session to reiterate that message.
2. Ensure that your equality and diversity, bullying and harassment and other internal policies are up to date.
3. Refresh equality, diversity, and bullying and harassment training ensuring that all staff attend. Training should be impactful and practical. If issues arise the SRA may want to review training course outlines and materials.
4. Consider whether the firm’s expectations around conduct at work-related events (including client entertainment, firm social events, and professional networking) are fully understood by all partners and staff. The SRA may ask for a copy of any policy on this subject. If you do not have one, you should put one in place.
5. Ensure all partners and senior fee earners give fair, constructive and timely feedback. A significant number of bullying and harassment allegations arise in the context of criticisms of an employee’s work, which are perceived to be overly harsh. This might involve bespoke training or it could be incorporated into the training outlined above.
6. Ensure all staff are aware of when they need to report concerns about compliance with the SRA’s regulations, and how they can do so. To this end we recommend you review your internal whistleblowing/speak up policies and consider if they are designed to ensure everyone is confident to report their concerns without fear of recrimination. It is also important to ensure that systems and resources are in place to investigate concerns promptly and thoroughly.
7. Consider implementing a stress and mental wellbeing at work policy if the firm does not already have one to inform employees of what support there is available if they are facing stress and to help partners and other supervisors to spot warning signs of stress, burnout, or other mental health issues.