In the last few decades the legal profession has changed almost beyond all recognition. New working practices, use of technology and new regulation by industry bodies have introduced both benefits and challenges. Most correspondence is via email now, clients have evolved to expect instantaneous responses and supervision has become more difficult as the industry has been forced into flexible and remote working, particularly since the Pandemic.
Law is a sector that often demands long working hours and excessive workloads, often resulting in stress and work-life balance issues. Studies into the legal profession both before and during the Pandemic found that high percentages of legal professionals had experienced mental ill-health, depression and low mood with many stating their sleep patterns were affected. Most agreed that their work was fast paced with tight deadlines and there was pressure from clients who expected them to be available 24/7. There is plentiful evidence to suggest that performance, and even IQ, is affected when we are under stress and not sleeping well.
Employers are beginning to shift the wellbeing agenda. Whilst most employees agree that they are individually responsible for their own wellbeing, a growing number argue that their employer is also responsible. Employee benefits and wellbeing teams are now commonplace and report the top concerns and priorities for law firms currently centre around improving and supporting mental health in the workplace, ensuring that benefits strategies meet the needs of post-pandemic workers and working on creating a culture which actively supports workplace wellbeing. Also on the list of concerns is working on recruiting and retaining top talent and improving diversity within the legal sector.
Over the past two to three decades not much has changed in the way in which PII underwriters assess the risk presented by law firms, that was until the Covid Pandemic hit in 2020. With all the surveys and coverage about wellbeing in the media, it is no wonder that this appeared on the Professional Indemnity Insurers’ radar. Aside from the usual business details required for law firms’ PII proposal applications including fee income, work split, claims history etc, in recent years insurers have begun to require additional information from applicants such as how they are managing remote working, financial stability due to lockdown and how they are managing their employees’ performance and welfare.
On top of an already hardening insurance market even prior to the Pandemic, there has been a marked shift in the focus of underwriters so that now, in addition to the traditional risk management metrics there is an increasing desire to understand the culture of law firms and what initiatives they are utilising to support the wellbeing of their employees.
It is fair to say that it is only in recent years, perhaps ignited by the Pandemic, that the legal profession has begun to give any attention towards mental health and wellbeing within their own workplace and whilst there is arguably now a greater level of awareness, there is still much to be done on this front. Partners and senior level staff in managerial or supervisory roles have a duty to be alert to the warning signs of their employees state of wellbeing. Signs to look out for include a decline in an employee’s performance, uncharacteristic behaviour and symptoms of distress. It is important that if signs are spotted, firms have mechanisms in place to be able to respond appropriately by providing support to the employee in the form of allowing time away from the workplace, adjusting workloads and providing access to external counselling services for example.
It is recognised that mental health and wellbeing can be a catalyst for PII claims as it is invariably process or judgement issues that ultimately lead to a claim such as failure to record facts accurately, missed time limits, lack of supervision or failing to seek assistance. When an employee is tired, anxious or stressed their performance is affected; shortcuts are taken, diary dates are missed and employees may not want to ask for help as they may feel it reflects upon them negatively.
Many law firms will advise their insurance broker that they operate an open-door policy where employees are able to freely raise concerns or issues, however the question must be asked as to whether this is the real perception of their employees. Does the culture of the firm actively encourage employees to report concerns about their workload or personal health and wellbeing, and is that culture felt across the whole practice from top down?
The measure of the effectiveness of an open-door policy is whether employees are regularly engaging with management to raise queries and discuss their concerns. This also manifests in the notifications made to insurers; if a firm makes precautionary notifications in a timely fashion throughout the year, this would indicate that there is an open and supportive culture, which is in contrast to one which only notifies after a matter has been escalated to a claim which denotes that perhaps colleagues were reluctant to seek help at an early stage. These are the signs which underwriters are now placing greater value upon when assessing risk therefore it is imperative that firms understand the changing nature of the industry and adapt accordingly to ensure they do not suffer adversely when PII renewal time next comes around.