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Can solicitors be bystanders to offensive language?

18 Aug 14

To challenge may not be easy, but may be professionally required, says the Society's Equality Committee

by Neil Stevenson

#NoBystanders is a new, and in many ways uncomfortable, campaign from the charity Stonewall, with a video showing a progression from playground name calling to the spitted-viciousness of adults. It challenges our “sticks-and-stones” dismissal of the use of language and forces us to consider the impact of words. Lawyers in particular may dislike the idea that the equality agenda, or “political correctness”, is used to limit freedom of thought, expression or, indeed, humour, but many of us know how devastating a single word can sometimes be, and some will have insight of the increased strain when that word has hounded you your whole life.

But are there any special responsibilities in relation to solicitors around derogatory or offensive language?

Reflecting on the campaign, and some recent incidents which the Society had been made aware of, the convener of the Law Society of Scotland's Equality Committee, Janet Hood, posed the question during work to examine the advice we issue to support our members. As she observed, "It's obvious we have personal responsibilities, and ones around our colleagues and staff, but what about at a training event; what about clients; what if you are alone with the individual when the comment is made?"

Core standards

Some might instantly assume that a comment outside the immediate work or office context is not relevant, but others may recall one of their early points of contact with the Society when we present on the LLB and Diploma, reminding students that even actions in personal lives can impact on whether someone is assessed to meet the statutory test of “fit and proper” to be in the profession.

The Society sets out the core professional standards in relation to diversity in rule B1.15. In summary, no solicitor can discriminate in their professional dealings in relation to lawyers, clients, employees, or others. And if you “manage” or “supervise”, you have additional responsibilities to ensure fairness around areas such as promotion, the behaviours of those you have responsibility for, and even ensuring they understand their responsibilities. “Discriminate” is used in the general sense, which is broader than statutory definitions, and clearly includes discriminatory language or actions.

Let us take two examples to explore the issues – the misogynist joke, and a derogatory and unacceptable term (let's say “dyke”).

Clearly, a solicitor making either of these themselves could be open to a conduct complaint to the Scottish Legal Complaints Commission, now quite possible from a variety of sources unconnected to a particular case or client as a “third party” complaint. The comment could be in a work setting, but could equally easily be the pub or, where we are increasingly seeing issues, on the likes of Twitter and Facebook. It is essential that the public have confidence in the profession; such comments can undermine that, and few would now consider them appropriate.

Overheard in the office

What about overhearing that comment? If the solicitor is a partner, or manager of an in-house team, and these terms are used by an employee the responsibility is obvious (even if literally just overhearing a conversation in passing, rather than being party to it), and so it is that some action must be taken both to tackle the individual and ensure that an accusation of complicity cannot be made. These responsibilities come from employment law as well as the standards.

Likewise, if the person speaking is a client, but other employees hear the comment, you are responsible as a manger under law and the Society’s rules. A failure to ensure that your employees understand their responsibilities could also be raised against you as a conduct complaint with the Commission. If the incident happens in the office or at a work social event, or on work-related social media, the issue is clear, but if it's in personal time or on personal social media it may be seen by some as more nuanced. In the latter case a single comment unchallenged may be less likely to lead to a conduct finding, although a pattern of offensive behaviour might (for example, a regular “rant” on public Facebook about particular nationalities or religions), if employers are aware of it, it is offending employees, and no action is taken.

What if the solicitor who witnesses the incident between two others is a peer, not an employer or manager? Arguably this is still in the context of a “professional dealing” with colleagues, if you are in a work context, but as a passive observer without immediate responsibility, is there any potential conduct issue? Possibly not in relation to a one-off comment, but other rules must be considered carefully. For example, rule B1.2 prohibits behaviour which is deceitful, so, for example, if asked if you had witnessed the situation, to deny it or not offer information could be a conduct matter.

Facing up to situations

What if the language happens in a training course you are the speaker at? Your responsibilities may come down to the concept of “supervise”. In some settings your responsibility for the event may be minimal: a single speaker on a panel of four on a course run by another. However, in another scenario you may be a tutor on a university diploma or the provider of the training, and it may be deemed there is an element of supervision and therefore the additional responsibilities in the rule come into play. Likewise, a speaker contract (barely noticed by many speakers when they sign up to speak, but commonly issued) may require you to take action.

And what about when alone in a room with someone? Where a comment is made which doesn't immediately offend you but could offend others – the colleague making the misogynist joke? Well, even that depends! In a work context it may still be a breach of employment policies if you are in a position of responsibility, and if later discovered could be used to suggest you condoned a pattern of behaviour.

What about purely social situations, with interaction with strangers – from the pub to the football match? Professional responsibilities rarely stray into this area, but for the most serious of issues – but remember that some of these settings now have criminal offences (say trans-phobic or racist comments at football matches), and by, for example, staying and laughing as part of a group at a comment made, there could later be a suggestion that your own behaviour was threatening to the individual being commented on (that being an offence in legislation aside of any comment made). And, of course, the finding of any offence such as this would automatically be referred to the Society to consider whether there was a conduct issue as well.

Is it always easy to challenge others? Absolutely not, often it can embarrassing and awkward, but without challenge, cultures can remain that can be hostile, causing huge personal impact, as well as reputational and staff retention issues for sectors and firms. And how do we effectively challenge in these situations? Well, depending on the comments, techniques can range from humour, to polite correction or stating of an alternative, to taking formal action – the most important issue is acting in a way that does not condone the behaviour.

For that reason, the real rules are perhaps best summed up in conversational, rather than legislative style, as Janet Hood did at the end of the discussion: "A single word can offend, knock confidence or hurt; if you don't challenge it, others may well believe you condone it. That leaves the door open for conduct complaints more often than not, and should make everyone pause for thought about the consequences their actions can have."

Neil Stevenson is a director of the Law Society of Scotland and secretary to the Equality Committee (e: neilstevenson@lawscot.org.uk). More guidance on equality and diversity is available on www.lawscot.org.uk

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