Tools of the trade

The Law Society has launched a new ‘Dignity at Work Toolkit’ for the legal profession in response to the findings of the Dignity Matters report. The toolkit is designed to help create psychologically safe workplaces. Mary Hallissey reports.

The Law Society has been moving apace to deal with the findings of the Dignity Matters report. In addition to LegalMind – the subsidised confidential mental-health support operated independently through Spectrum Life – the Society will be launching a new ‘Dignity at Work Toolkit’ this autumn, specifically tailored to the legal profession.

The purpose of the toolkit is to help law-firm leaders and their teams to identify approaches to prevent, intervene in, and respond to bullying and harassment in the workplace.

It provides dignity-at-work information and resources contributed by professional bodies, such as the International Bar Association (IBA), the Health and Safety Authority, academics at DCU’s Anti-bullying Centre, and employment law specialists.

It sets out the applicable legal frameworks in terms of an employer’s duty of care, vicarious liability, and a definition of the ‘reasonably practicable steps’ to be taken in mitigation in alleged bullying cases.

Supplementing the toolkit, a ‘Dignity at Work’ contact point is now available through the LegalMind service to provide information on supports on bullying, harassment, and sexual harassment at work.

Global problem

The Law Society’s Dignity Matters report had its roots in the IBA’s Us Too survey in 2019, which revealed high levels of bullying, harassment, and sexual harassment in the global legal professions.

As a result of that survey, the Law Society initiated its Dignity Matters survey so that it could better understand the extent of these issues in Ireland. That report provides a suite of recommendations to prevent, respond to, and tackle these types of behaviours.

Troubling revelations

The Law Society has said that the troubling revelations disclosed in Dignity Matters are a call to action to eradicate negative behaviours that do not align with the legal profession’s foundational values of integrity, trust and respect.

Antoinette Moriarty (psychotherapist and head of Law Society Psychological Services) points out that there are often complex dynamics at play in bullying behaviour between two or more people. “We need to be curious about what’s being manifested in that behaviour,” she suggests.

This means understanding the deeper and less conscious roots of such challenging behaviour. Rather than jumping straight to ‘blaming and shaming’, Moriarty describes how bullying and harassment could be considered an overload, where an individual’s capacity to manage from a healthy framework is diminished.

Solving problems

Solicitor Cian Moriarty (Guidance and Ethics Committee) says that those who feel wronged should not be afraid to come forward, for fear of repercussions. Complaints should be properly addressed, he believes: “We are in the business of solving problems. We solve problems for our clients all of the time, so we should be willing and prepared to do that for each other as well.”

Good and ethical behaviour in the workplace is contagious, but the opposite is also true. Bad behaviour can spread and be mimicked by junior staff.

Well-motivated individuals with high standards can have a profoundly positive impact on the organisations in which they work, he adds. But if senior management either overlooks or rewards negative conduct, it risks being seen as ‘acceptable’.

Manifold impact

Law School psychotherapist Paul Hughes adds that the impact of bullying behaviour is both manifold and deeply stressful on the individual. Anxiety, loss of sleep, and an unhealthy reliance on substances to self-soothe may be the result.

Hannah Carney (Hannah Carney and Associates) points out that law firms must define and agree for themselves what constitutes workplace respect, and then live it at every level: “Define it, communicate it, and live it,” she advises. Behaviours that fall short should also be held to account.

Solicitor Noeline Blackwell adds that leadership must take ownership of a ‘no-tolerance’ approach to harassment. Up-to-date anti-bullying and harassment policies and procedures are essential in preventing and tackling negative behaviours, she adds.

Employment law specialist and Law Society President Michelle Ní Longáin states that it’s hugely important that solicitors’ workplaces, wherever they are, are safe, respectful, effective places for all who work there. “We are determined to support solicitors in and at all stages of their professional lives,” she says.

“Bullying, harassment and sexual harassment undermine the dignity and wellbeing of the person, are completely inconsistent with solicitors’ practice within the rule of law, and reduce the effectiveness of both the work of individuals and the workplaces affected,” she added.

There are strong moral, ethical and business reasons for solicitors to have regard to the Dignity Matters report, Ní Longáin said. The Dignity at Work Toolkit is part of a large body of work undertaken by many in the Law Society to address the issue, she added. “I encourage all solicitors to read the report and take its messages on board, and to look at the toolkit and use it where appropriate.”

Fair procedures

Máille Brady Bates, a solicitor specialising in Irish employment law, comments that complainants may have difficulty in accepting that those complained about also have rights.

All parties to a complaint must be treated fairly and equally, but this can be a very challenging concept to accept in practice. “Often, it can take great courage and conviction to get to the point of actually submitting a complaint, particularly when there has been a power dynamic involved in the bullying. The application of fair procedures can be especially difficult for complainants in those circumstances,” Brady Bates notes.

This is why a clear and accessible policy that outlines how the parties will be dealt with is particularly important. Parties should know what to expect from the outset, with wide open lines of communication to allay concerns.

During the process, additional supports may be needed, such as counselling made available through an employee assistance programme.

Tipping point

But at what point does managerial striving to do a good job, and driving employees to perform to their best, tip over into bullying?

“The Bullying Code, under the Industrial Relations Act 1990, provides clarity on what is not bullying and lists a number of examples, such as offering constructive feedback, strongly expressing differences of opinion, and ordinary performance management,” Brady Bates points out.

The code notes that, while disrespectful behaviour, conflicts, and relationship breakdowns are not ideal in the workplace, they do not automatically reach the “adequate level of destructiveness” to be considered bullying. The legal definition of bullying extends to “repeated, damaging, disrespectful and destructive behaviour”.

The Bullying Code also provides a list of behaviours that make for a bullying pattern and includes examples such as verbal abuse or insults, being treated less favourably than colleagues in similar roles, and disseminating malicious rumours, gossip or innuendo.

As a lawyer, is it difficult to discern what constitutes a valid complaint of bullying?

“The range of bullying allegations varies widely in practice, and no two cases are the same,” Brady Bates notes.

When investigating bullying claims, adherence to the dignity-at-work policy, fair procedures, the overarching legislative framework, the Bullying Code, and case law is strongly advised by Brady Bates.

The recent Supreme Court decision in Ruffley established a higher threshold to be met when determining what constitutes workplace bullying. In that case, O’Donnell J found that it is not sufficient for the alleged behaviour to merely be repeated and inappropriate, it must also meet a certain minimum threshold if it is to constitute bullying.

He found: “Conduct must be repeated, not merely consist of a number of incidents; it must be inappropriate; not merely wrong; and it is not enough that it be inappropriate and even offensive: it must be capable of being reasonably regarded as undermining the individual’s right to dignity at work.”

However, each bullying claim will depend on the specific facts and must be judged on a case-by-case basis to determine whether the allegation is upheld or not, adds Brady Bates.

The Society’s Dignity at Work Toolkit provides information on Irish legal definitions of bullying, harassment, and sexual harassment, and refers to the obligations and responsibilities of employers to create a safe working environment.

Reasonable assumptions

Patricia Murray, the Health and Safety Authority’s senior work and organisational psychologist, points out that managers have a distinct role, insofar as they represent the employer.

“If an employee reports to a manager anything alleging a bullying matter, the manager has to act in a way that can be defended if queried later,” Murray notes. “They must assess, be reasonable in their assumptions, record their decision, and record their action or inaction, and rationale,” she explains.

However, managers should receive a degree of training and induction on the topic, Murray believes. “If destructive behaviour is targeting a person over time, regardless of the context, the manager should intervene to stop the pattern,” Murray advises.

The new toolkit will include direction on how to progress complaints of bullying. There are also templates that will help a manager distinguish a bullying matter from a non-bullying matter.

Three-pronged approach

‘Prevention, intervention and resolution’ approaches to bullying and harassment are detailed in the toolkit. It includes key elements to foster a healthy workplace culture, along with steps to ensure that an effective complaints policy is in place for prompt, supportive, and fair resolutions.

“The manager should spotlight solutions, highlight the need for respectful interactions, and pivot the relationship sideways to avoid it becoming bullying in its hard sense. That’s what managing human beings is all about. They aren’t machines,” Murray concludes.

You can access the toolkit on the Law Society Dignity Matters Project webpage at lawsociety.ie/dignitymatters. To get in touch with any thoughts or suggestions on the project, contact ps@lawsociety.ie.

‘Dignity at Work’ contact point

All members, practising certificate holders, and post-PPC2 trainees can access subsidised and confidential mental-health support through LegalMind, operated independently through Spectrum Life.

A ‘Dignity at Work’ contact point is now available through LegalMind to provide information on supports and to signpost information on bullying, harassment, and sexual harassment at work. Freephone LegalMind at 1800 81 41 77 or visit www.lawsociety.ie/legalmind for more information.

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