Almost six months on since the amended Rules of Conduct and Client Care came into force, the holiday season is a timely reminder for all law practices about the new requirements.
One of the key changes impacting every law firm, including sole practitioners, is the requirement to have anti-bullying and harassment policies. Evidence of these policies will need to be provided to the Law Society as part of the annual declarations by 30 June 2022.
“Lots of law practices have done some great work on this already. But for others, now is a good time to check if you are complying before the 30 June 2022 deadline for annual reporting,” says General Manager Professional Standards, Katie Rusbatch.
Requirement to have policies and systems in place
Having an anti-bullying, discrimination, and harassment policy at your law practice is required under Rule 11.2 of the Conduct and Client Care Rules. There are also wider workplace obligations to manage health and safety risks as far as practically possible. Rule 11.2 has been in force since 1 July this year.
By 30 June 2022 designated lawyers from each law practice (including sole practitioners) will need to certify that their practice is meeting their obligations under the Rules. This will include declaring that their law practice has policies and procedures in place to prevent and protect from bullying, harassment, discrimination and violence.
Many law practices will have different circumstances and will need to tailor their policies to their circumstances. For example, a sole practitioner may wish to have a process where any complaints are referred to another lawyer to investigate.
Policy guidance is available
To help law practices to design policies for their specific situations, the Law Society partnered with WorkSafe New Zealand to run a free webinar on designing bullying and harassment policies for law firms. Held on 10 Nov 2021 and presented by WorkSafe’s Dr John Fitzgerald and barrister Paul Collins, a recording of the webinar is available on the NZLS CLE website.
There’s also a wealth of guidance on the WorkSafe and Employment New Zealand websites.
WorkSafe describes bullying and harassment as a serious and common work risk. Under the Health and Safety at Work Act 2015 (HSWA) businesses are expected to manage health and safety risks arising from their work as far as is reasonably practicable.
Paul Collins says that lawyers need to be focussed on the formulation of a policy, rather than just downloading a document and allowing it to gather dust. “It’s important that you give thoughtful consideration to the requirements.”
|Introductory statementExpectation of standards of compliance with:
- Lawyers and Conveyancers Act 2006 including Conduct and Client Care Rules;
- Human Rights Act 1993;
- Health and Safety at Work Act 2015;
|Statement of prohibited behaviours, listing each category in r.11.2 with reference to the definitions in r.1.2.
|Workplace conduct: include off-site/social/professional development activities.
|Identify persons to whom the policy applies, including term of employment agreement where possible and acceptance by contractors regularly on premises.
|Refer to reporting requirements under rr.2.8, 2.9 and 11.4.
|Identify designated lawyer and describe responsibilities including reporting and certification and ensuring the policy is kept up-to-date.
|Describe complaints procedures including investigation and determination:
- Compliance with rules of natural justice.
- Strict confidentiality.
- Availability of support person
|Requirement to have a person in charge at social and off-site events, to remain until the end of event.
|If sole practitioner or small firm, designate an independent person to receive and investigate complaints.
|Provide notice of the policy to all principals, employees and persons working at premises.
Sole practitioners and small practices
Sole practitioners and small law practices are encouraged to tailor their policy to their specific circumstances. “Even if you don’t have any employees, you still need a policy in place. But it can be quite brief, and tailored to your limited exposure to these issues,” says Paul.
He recommends a statement of intent and a few guidelines, but adds that larger law practices will need something more sophisticated.
Mentally healthy workplaces involve more than just policies on paper
Dr John Fitzgerald is the lead on Mentally Healthy Work at WorkSafe New Zealand. Dr Fitzgerald emphasises that “policies are only as good as the practice that they inform and facilitate.
“Health and safety at work is everybody’s responsibility. Mentally healthy work is where risks to people’s mental health are eliminated or minimised, and their mental wellbeing is prioritised.”
Dr Fitzgerald says that having a positive culture is about more than social activities like shared lunches or quiz teams. “Healthy workplaces are safe – both physically and mentally.
“Bullying, harassment, discrimination and violence are health and safety risks. As a business owner or office holder, the onus is on you to identify and manage this risk as far as practically possible.”
Culture key to prevention
Dr Fitzgerald describes psychological safety as being where everyone feels safe to stand up and say “what’s happening here is not OK”.
He says that to reduce the risk of bullying and harassment, law practices should:
- Create a workplace culture that encourages people to support one another.
- Set house rules. Put how you’ll tackle bullying in your policies and procedures. To follow the rules, your workers must know them. Put your policy where staff can find it.
- Have an anti-bullying and harassment policy that every employee is aware of when they sign their employment agreement.
- Educate workers and managers about bullying.
- Make sure your workers know how to report unreasonable behaviour.
Off-site activity and social activity
The idea of regulated professional conduct relating only to legal work at the office or in Court is outdated. Your policy needs to cover all forms of workplace conduct. This includes any conduct while working within the law practice’s premises, conduct away from the firm’s premises including at clients’ premises, mediation meetings or education or professional development events.
Off-site firm social events and any incidental activities are also covered. A responsible and senior lawyer should supervise off-site and social workplace activities.
Communication and commitment
Aotearoa Legal Workers Union (ALWU) Co-President Tess Upperton says that communication around the policies is equally important. “Employees need to know that there are effective accountability mechanisms so that they feel safe and empowered coming forward when there are issues. Employees will not come forward if they feel that nothing will be done.”
Ms Upperton also recommends that employers consult with their employees when forming a policy. “ALWU has often received feedback from members that employees have policies dropped on them from above as a done deal. Consultation on the formation of the policy itself, for example, drafting it with a steering group that includes employee representatives lets employees shape the policy from the beginning and feed in any concerns directly.”
Ms Upperton says that once the policy is finalised, it is essential that everyone in the workplace is made aware of the policy and gives it life: “Just uploading it to the intranet is not enough. The policy needs to become embedded within the culture of the workplace through training so that it actually effects positive change and is not just aspirational.”
Dr Fitzgerald says that often leadership can talk a good game on their commitment to anti-bullying, harassment and discrimination policies. “What’s important is management. Make sure that it filters down, and that managers are supported and trained to do it properly.”
Preventing and responding to bullying, harassment and discrimination:
Preventing and responding to bullying at work: worksafe.govt.nz/topic-and-industry/bullying
Sexual harassment: worksafe.govt.nz/topic-and-industry/sexual-harassment
Employment New Zealand: employment.govt.nz/resolving-problems/types-of-problems/bullying-harassment-and-discrimination
How to write health and safety documents:
Global standard on managing psychosocial health and safety in the workplace
ISO 45003 is the first global standard giving practical guidance on managing psychological health and safety in the workplace published as a full International Standard on 8th June 2021.
Organizations are using ISO 45003 to help protect and support workers from mental ill-health arising within the workplace.
Simply put, it is a “how-to” guide for creating mentally healthy and safe workspaces based on a preventative not reactive approach.