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Bullying and harassment in the legal profession

04 April 2018

The New Zealand Law Society is committed to targeting and eliminating the culture of bullying and harassment which exists in some parts of the legal profession. As well as taking direct action and establishing a number of initiatives, the Law Society is providing information and practical guidance for anyone who needs assistance. This information has been compiled from a number of sources and will be constantly reviewed and updated.

Bullying and harassment

“There is no place for a culture of sexual harassment in our profession. It must stop. The Law Society is determined to do all it can to tackle this issue,” – New Zealand Law Society President, Kathryn Beck.

The New Zealand Law Society is committed to ensuring that all lawyers are treated with respect, courtesy and fairness and maintain the standards expected of the profession at all times, as stated in rule 10.1 Lawyers and Conveyancers Act (Lawyers Conduct and Client Care) Rules 2008.

Bullying and harassment is likely to be a breach of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 and could result in a finding of misconduct or unsatisfactory conduct under the Lawyers and Conveyancers Act 2006.

The worst kinds of harassment — including serious sexual harassment — are likely to be misconduct.

A Lawyers Standards Committee cannot make a misconduct finding. It may decide to refer a serious complaint against a lawyer to the New Zealand Lawyers and Conveyancers Disciplinary Tribunal. Only the Tribunal can make a finding of misconduct.

Lawyers must report misconduct to the Law Society. Persons being harassed might also need to consider making a complaint to the police or to the Human Rights Commission.

What is the Law Society doing?

The New Zealand Law Society has established a working group — chaired by Dame Silvia Cartwright — to consider what improvements can be made to enable better reporting of harassment in the legal profession to the Law Society. It is essential that all lawyers are able to practise in a workplace environment in which they are free from any harassment. The working group will look at whether the Lawyers and Conveyancers Act 2006 and its associated rules and regulations allow the Law Society to take effective action.

Alongside the working group, the Law Society has looked at the practical actions which are needed to openly and fully address the issue of sexual harassment in the legal profession. This includes providing support for people who are affected by it.

The Law Society’s plan of action includes:

Launch of a dedicated helpline – 0800 0800 28 – which enables reporting of concerns related to workplace harassment. This is to make it easier for people to raise and discuss sensitive matters in their workplace.

An online facility for lawyers to report unacceptable conduct: This allows lawyers to obtain information and guidance to assist in determining whether they must submit a report on harassment and other unacceptable behaviour. It allows them to submit a report online, which may be submitted anonymously.

A free webinar on preventing bullying and harassment was presented to over 2,000 lawyers on 4 April 2018.

Completion of a review of the National Friends Panel and identifying or recruiting members who are well placed to provide support and advice on sensitive matters.

During April the Law Society is organised and facilitated meetings of key interest groups such as those for women lawyers and young lawyers to look at the issues, what needs to be done and to develop appropriate resources. Following these meetings, a national taskforce is being formed to drive culture and systems change across the profession.

A national survey of all practising lawyers which looks at the current workplace environment for legal practice was sent to all New Zealand-based practising lawyers on 6 April, closing on 30 April. It was carried out by research firm Colmar Brunton on behalf of the Law Society. As well as seeking information on harassment, this will also included questions on stress and wellbeing. The results of the national survey were released on 30 May 2018.

Development of more Law Society branch and national events which address how to deal with difficult people, bullying and harassment.

Provision of more information and practical guidance through Law Society publications, including through the monthly magazine LawTalk.

Inclusion of information which addresses harassment and bullying in Law Society publications for young lawyers.

Development and maintenance of centralised information resources and support available from organisations both within and outside the legal profession. This will draw upon the Practising Well initiative.

During 2017 the Law Society’s Women’s Advisory Panel looked at harassment as well as other matters blocking the advancement of women in the profession. It decided that the issue of harassment and bullying required its own project and focus to sit alongside the Gender Equality Charter. The Law Society launches the Charter in April 2018.

What are we aiming for? We must focus on the culture and underlying assumptions which exist in some law firms and legal workplaces. As with the Gender Equality Charter, the change has to come from inside, driven and assisted from outside.

What is bullying?

Employment New Zealand describes bullying as:

  • Repeated and unreasonable behaviour directed towards a worker or a group of workers that can lead to physical or psychological harm.
  • Repeated behaviour is persistent and can involve a range of actions over time.
  • Unreasonable behaviour are actions that a reasonable person in the same circumstances would see as unreasonable. It includes victimising, humiliating, intimidating or threatening a person. A single incident of unreasonable behaviour isn’t considered workplace bullying, but it could escalate and shouldn’t be ignored.

What is harassment?

Employment New Zealand provides information on what constitutes harassment. This is summarised as follows:

Sexual harassment

An employee is sexually harassed if their employer or colleague (or a representative of their employer):

  • Asks the employee for sex, sexual contact or other sexual activity, with a:
    • promise (it can be implied) of better treatment in their employment, or
    • a threat (it can be implied) either of worse treatment or about current or future job security
  • Subjects (either directly or indirectly) the employee to behaviour that they don’t want or is offensive to them (even if they don’t let the employer or the employer’s representative know this) and which either is so significant or repeated that it has a negative effect on their employment, job performance or job satisfaction:
    • by using (in writing or speaking) sexual language, or
    • by using sexual visual material (eg pictures, diagrams, photos, videos, etc), or
    • through sexual physical behaviour.

Sexual harassment can happen to, and be carried out by, someone of any sex. It can be subtle or more obvious.

Whether a behaviour is sexual harassment is viewed objectively, considering whether the conduct was unwelcome or offensive, from the perspective of the complainant.

Examples of sexual harassment:

  • Personal, sexually offensive comments.
  • Sexual or smutty jokes.
  • Unwanted comments or teasing about a person's sexual activities or private life.
  • Offensive hand or body gestures.
  • Physical contact such as patting, pinching or touching.
  • Provocative posters with a sexual connotation.
  • Persistent and unwelcome social invitations (or telephone calls or emails) from workmates at work or at home.
  • Hints or promises of preferential treatment in exchange for sex.
  • Threats of differential treatment if sexual activity is not offered.
  • Sexual assault and rape.

Racial harassment

An employee is racially harassed if the employee's employer (or a representative of their employer) uses language (written or spoken) or visual material, or physical behaviour that directly or indirectly:

  • Expresses hostility against, or brings the employee into contempt or ridicule, because of their race, colour, or ethnic or national origins of the employee, and
  • This is hurtful or offensive to the employee (even if they don’t let the employer or the employer’s representative know this), and
  • It is so significant or repeated that it has a negative effect on the employee's work and performance.

The person doing the harassment doesn’t have to be intending to racially harass for the behaviour to be racial harassment, it depends on how the person the behaviour impacts is affected by the behaviour.

Examples of racial harassment:

  • Making offensive remarks or jokes about a person's race,
  • Copying or making fun of the way a person speaks,
  • Calling people by racist names,
  • Deliberately mispronouncing or mocking people's names.

Sexual or racial harassment by customers or clients of the employee’s employer

Harassment is also covered by the Employment Relations Act 2000 and the Human Rights Act 1993. If a customer or client of their employer subjects an employee to the behaviour, then the employee should complain to an employer in writing. The employer has to investigate and if they decide that the behaviour happened, they have to take whatever steps are practicable to stop it happening again. If harassment does happen again, and the employer hasn’t taken the practicable steps then:

  • The employer will be in breach of the Human Rights Act 1993, and the employee could complain to the Human Rights Commission, or
  • The employee could bring a personal grievance.

Other forms of harassment

General harassment could include any unwanted and unjustified behaviour which another person finds offensive or humiliating and because it is serious or repeated it has a negative effect on the person’s employment, job performance or job satisfaction.

Specific protection from other forms of harassment at work isn’t included in legislation, but if an employee is subjected to another form of harassment, they may be able to bring a personal grievance, for example, if

  • Other forms of harassment are included in workplace policies or employment agreements, or
  • The harassment leads to unjustified disadvantage or constructive dismissal.

Other forms of harassment that may be bullying if repeated include:

  • Comments or behaviour that express hostility, contempt or ridicule, repeated put-downs for people of a particular age, body shape, gender identity, etc.
  • A general work atmosphere of repeated jokes, teasing, or ‘fun’ at someone else’s expense because of a particular characteristic they have.

Reporting unacceptable conduct to the Law Society

“Sexual harassment is disrespectful, discourteous and does nothing to promote or maintain proper standards of professionalism in lawyers’ dealings with others. Sexual harassment could be an indication of a lack of integrity on a lawyer’s part. While such conduct could be addressed in the human rights and employment jurisdictions, sexual harassment is also conduct of a type that could result in a determination of ‘unsatisfactory conduct’ being made against the lawyer. Some situations where an allegation of sexual harassment is made could result in a lawyer’s conduct being considered by the New Zealand Lawyers and Conveyancers Disciplinary Tribunal, which exercises jurisdiction over misconduct and has the power to suspend or strike the practitioner off.”
- Personal observations made by a Deputy Legal Complaints Review Officer in a letter to LawTalk (Issue 914, February 2018).

Harassment and bullying has no place in the practice of law and is contrary to the values we as a profession stand for. The New Zealand Law Society knows that making a complaint and investigating it can be a confronting experience for victims and we are currently exploring ways to address this. A working group has been established with this as one of its aims.

There are two ways that unacceptable conduct can be reported:

Reporting misconduct and unsatisfactory conduct

All lawyers are required to submit a confidential report to the Law Society if they have reasonable grounds to suspect another lawyer has been guilty of misconduct. A lawyer who has reasonable grounds to suspect that another lawyer has been guilty of unsatisfactory conduct can also make a confidential report to the Law Society. The obligation on lawyers to report unacceptable conduct applies equally to lawyers who witness the conduct as to those directly involved (subject to legally privileged communications).  The obligations to report are set out in rules 2.8 and 2.9 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008. The purposes of these rules are the protection of the public and the maintenance of the integrity and reputation of the profession. Both are vital to ensuring lawyers retain the trust of the public and the clients they serve.

Guidance is available around what might constitute misconduct and unsatisfactory conduct, what happens to a report when it is received and what can be achieved through reporting.

On online facility for submitting these reports on unacceptable conduct is available on this website.

Lodging a complaint

Anyone can lodge a complaint with the Lawyers Complaints Service. The Service provides assistance and information in relation to complaints, including about rights and options. If you are unsure whether you have grounds for making a complaint you can contact the Lawyers Complaints Service on 0800 261 801 or complaints@lawsociety.org.nz. If you are unsure about whether you want to make a complaint you can lodge a concern by using the online Concerns Form, and a Legal Standards Officer will phone you at a convenient time to discuss this.

In relation to sensitive matters you may wish to call the Law Care freephone service on 0800 088 28.

Further information about the Lawyers Complaints Service is available here.

Non-disclosure agreements

The Law Society's view is that settlement or non-disclosure agreements between law firms and employees cannot prevent a person from making a complaint to the Law Society. An agreement which seeks to prohibit a person from exercising their right to complain to the Law Society in return for a sum of money or some perceived advantage or concession could be unenforceable, against public policy and could breach a lawyer’s obligation to uphold the rule of law. It could also foster corrupt practices and abuses of power. It is our view that lawyers should not be able to “buy off” complainants. This has been endorsed by the Legal Complaints Review Office, the statutory appeal body for lawyer complaints.

A confidentiality or non-disclosure clause does not absolve a lawyer from the obligation to report misconduct under rule 2.8. Failure to report the matter when required to do so could result in disciplinary action being taken against the lawyers who were a party to the agreement.

Information for employees

Bullying and harassment is something that is, unfortunately, all too common in our workplaces and yet it remains something that is often misunderstood and confronting. It can be difficult and emotionally fraught.

Starting a new job is often a difficult and stressful time. Learning to deal with and manage different personalities and new ways of working can be a challenge for everyone.

When you start out in your professional career you learn that joining the workforce means dealing with many different types of people – supervisors, colleagues and clients etc - with completely different outlooks on life. Learning to deal with a range of personalities such as functional communicators, deadline sticklers, colleagues under significant work pressures and managers who are very forthright when it comes to constructive criticism (and less forthright with praise) is part and parcel of coping with working life.

However, learning to cope with a supervisor or colleague who approaches work differently is not the same as having to dealing with one who steps over the line into inappropriate and unacceptable behaviour.

What do I do if I think I am being bullied or harassed?

Dealing with workplace bullying and harassment is stressful and is not something you should have to cope with alone. The most important thing is to get help and take a constructive course of action whether formally or informally. It is always worthwhile trying to resolve a matter informally and at an early stage before a matter escalates. Staying silent is not the best option.

WorkSafe has an excellent guide to what bullying at work can look like, and what you can do if you think you are being bullied, or are accused of being a bully. WorkSafe suggests:

(1) First you should gather information about each incident, including:

  • Date, time and place,
  • What happened (who was present, what was said, who said what),
  • Whether anyone else was present, and
  • How you felt.
  • (2) Identity options and decide on a course of action.

    WorkSafe outlines options for dealing with unreasonable behaviour. These include:

    Seeking advice and support. Speak to a trusted friend or colleague (or a “friend” through the Law Society’s Friends Panel, including “sense checking” that the behaviour you are experiencing is unreasonable.

    Dealing with the behaviour yourself if you are comfortable doing so (by addressing your concerns directly with the person concerned).

    Informally report the incident to the appropriate person within the organisation (someone from human resources, a partner or manager if it relates to someone in their team, or another partner or manager within the organisation).

    Formally make a written complaint.

    Other support

    Larger organisations often have confidential support schemes (such as Employee Assistance Programmes) which you may be able to access.

    WorkSafe also provides information on what you can expect from your employer once you bring your concerns to their attention.

    The Humans Rights Commission has a specific guide on dealing with sexual harassment. The Commission also offers a free, confidential service for anyone enquiring or complaining about discrimination, racial or sexual harassment – call 0800 496 7877.

    There are also other resources and organisations that provide assistance in relation to sexual harassment and assault:

    Safe to Talk: Send a text to 4334 and they will text you back.

    Police: call 111.

    HELP: call 09 623 1700.

    Counselling Services Centre: call 09 277 9324.

    National rape crisis: call 0800 883 300.

    ACC (for assistance with funding support): ACC Sensitive Claims call 0800 735 566.

    Lifeline – 0800 543 354 (0800 LIFELINE).

    Sexual assault support centres near you.

    You may also have access to free confidential services through your employer (such as an Employee Assistance Programme EAP).

    Assistance and support from the Law Society and the profession – 0800 0800 28 Law Care

    The health and wellbeing of the legal profession is important to the Law Society. A free phone number is available to report or discuss sensitive issues such as bullying and harassment. It is a confidential point of contact for lawyers and law firm employees who have experienced, witnessed or been affected by sexual harassment, sexual assault or other unacceptable behaviour.

    Staff who are operating the Law Care free number - 0800 0800 28 - are able to offer callers a range of options and support services to assist in dealing with their concerns. They have received training focused on the needs of those who may call the 0800 number.

    National Friends Panel

    The National Friends Panel is a New Zealand Law Society service. The Panel is made up of lawyers willing to be contacted on a confidential basis by other lawyers with questions or concerns relating to practice issues. It can be helpful to discuss things with someone who understands the pressures of life as a lawyer. Some of your experienced colleagues have put themselves on this panel and offered to provide assistance and support to lawyers who are dealing with bullying and harassment in the workplace. Care should be taken at the beginning to establish the relationship – a lawyer/client relationship (on a pro-bono) basis will ensure that the matter is privileged so that issues relating to reporting do not arise for the “friend” or colleague.

    If you would like to discuss utilising this service or would like assistance with selecting a “friend” you can contact the Law Care free phone on 0800 0800 28.

    Information for employers

    It is in the interest of all lawyers to promote a safe, healthy, respectful and fair legal work environment. Bullying and harassment in the workplace is a risk to health and safety. It can cause serious problems for legal workplaces, including:

    • Low morale,
    • High staff turnover,
    • An inability to attract or retain good staff,
    • Increased sick leave,
    • Low productivity and poor performance,
    • Damage to an organisation’s reputation and brand,
    • Potential professional complaints and disciplinary action through the Lawyers Complaints Service, and
    • The financial consequences of personal grievances and employment disputes.

    Policies

    Bullying and harassment in the workplace is a health and safety risk. We strongly recommend that law firms and workplaces have in place a robust policy on bullying and sexual harassment. Firms and employers can reduce the risk of bullying and harassment by clearly setting out expectations and what constitutes unacceptable behaviour.

    There are a number of organisations that have good sample polices and templates.

    A draft template policy and guidelines for the legal profession is available for use. This is based on the State Services Commission policy guideline and has been adapted by employment lawyer Steph Dyhrberg.

    Employment New Zealand is also a good place to start when considering an appropriate policy in this area. This resource has information on bullying and harassment, what a model policy should include, dealing with inappropriate behaviour formally and informally, how to make a formal complaint, how to respond to a complaint and possible actions for employers to take after a complaint has been made.

    WorkSafe has a bullying prevention toolbox with useful templates and documents and guidance that is useful for both small and large organisations.

    The Human Rights Commission has more comprehensive information on bullying and harassment including a kit training kit for conducting workplace bullying prevention training. This site also includes a comprehensive model workplace bullying policy.

    Education

    Robust policies are important but are not enough. Leaders in legal workplaces need to ensure that all employees understand the policy and guidelines and that they are being implemented. It is important that staff know what constitutes harassment and bullying. It may seem obvious but it will not always be clear to everyone in the practice. Good training with real examples is important to ensure there is a clear understanding of what is unacceptable behaviour. This is particularly important when trying to alter a “just joking” culture within an organisation. Humour can sometimes be used to excuse behaviour that others find offensive and inappropriate, which can be a form of bullying or harassment.

    It is important that leaders in a legal workplaces, such as partners, lead by example. Employees look to leaders to set the firm’s culture. A healthy culture enables people to speak out, not just victims but witnesses. All members of the legal workplace should receive harassment and bullying training from partners and general managers through to administrative staff.

    The Law Society has commissioned a free webinar – Preventing and dealing with harassment and bullying.

    Calling out behaviour – why you should

    Calling out inappropriate behaviour is important in changing the culture of a legal workplace. When the bully or harasser is someone senior to you, a mentor, a fellow partner or a senior manager this can make it very difficult to address. You may be concerned that it will have a negative impact on your career or the close relationships or networks you have formed. However, putting up with bullying is just as likely to be bad for workplace enjoyment and your career.

    Lawyers and legal staff joining a legal workplace or starting out in their career are likely to be daunted and uncomfortable speaking out about inappropriate behaviour. This means that it is important that senior lawyers, as leaders in our profession, make a concerted effort in this area. When you see bullying, harassment or abuse, call it out, do not be a bystander. Tell the perpetrators that it is not appropriate. More importantly, model appropriate behaviour yourself. It is important that young lawyers or those thinking of studying law know that they are joining a profession with a culture based around collegiality, support and respect.

    Not speaking up can lead to a huge cost to the organisation – not just from a legal employment and personal grievance perspective. It can mean a failure to attract and retain good staff and significantly damage the organisation’s brand leading to a potential loss of business.

    Alcohol in the workplace

    Alcohol is a risk factor and a common contributor to unacceptable behaviour in the workplace. Grievances and disciplinary matters are frequently tied in some way to alcohol use. Employers and managers have a health and safety duty when it comes to alcohol in work environments.

    We know that the law can be a stressful profession and it is common for alcohol to be used as a stress-relief. The heavy consumption of alcohol in the legal profession has previously been a part of the culture. Traditionally, long working hours and an expectation of high work standards has meant that often the Friday night drink, work completion celebration or client networking events involve a wind down from a busy workload. The profession is moving away from a culture that encourages heavy drinking at events.

    All employers who serve alcohol need to ensure they have policies around alcohol consumption at work-related events. It is important to consider ways to allow all staff to continue to safely enjoy workplace social and work events where alcohol is available.

    Take the time to consider the culture of your workplace. Emphasise to all staff that drinking to excess is unacceptable during work events. It is particularly important that young people joining the workplace are given information about alcohol usage guidance and acceptable conduct.

    Information and resources on managing alcohol in the workplace is available on the Health Promotion Agency’s website on alcohol.

    Last updated on the 29th May 2018