News

Lockdown blues

April 21 2020

This film of a police officer telling a member of the public that if he doesn’t do what he tells him he (the police officer) will “make it up” and that he – rather than the innocent citizen – will be believed has been widely publicised – and criticised. The Lancashire Police have apologised for the officer’s “completely unacceptable” language and behaviour. As well they might.

No doubt lessons will be learned and training given. Well, let me summarise that training. There are three things the police should never “make up”: the law, offences or evidence. It really should not be hard to understand this. Or follow it.

The inevitable internal investigation has now started. There are a few points worth noting about the behaviour of the officer making these remarks.

(1) How likely is it that this was the first time this officer thought of saying he would make stuff up to get his way?

Any investigation will necessarily have to focus not just on this incident but on other cases where this officer’s evidence or statements or behaviour may have been critical to the outcome. If the investigation does not do this of its own accord, defence lawyers are likely to make themselves heard.

(2) Note the striking confidence with which he asserted his belief that his uniform, his status would automatically make him more believable. It is not so much the arrogance of the statement which is shocking but its truth. And it is precisely because it is (generally) true, that the officer’s behaviour is so reprehensible. Abuse of trust undermines the confidence which the public and police both need if policing is to work well – especially during lockdown when the police have been given unprecedentedly wide (and potentially oppressive) powers.

Abuse of trust at any time undermines the reputation of every other police officer, no matter how honest or hard-working. As the Lancashire Police’s apology put it: “It only takes one incident like this to undo the hard work of so many.” Quite.

And what of the other officer in the incident? You did notice him, didn’t you? The one who was standing by while this was happening and did not intervene. (The Lancashire Police did not feel it necessary to apologise for his conduct, inaction generally being seen – wrongly – as somehow less deserving of criticism.)

Why might that be? Maybe he did not think what his colleague was doing was wrong. Maybe he did but did not think he should intervene at that stage. Maybe he didn’t think he would get any support from his colleagues or superiors if he did. Or, worse, that he might be criticised or ostracised. (Perhaps the investigation will ask questions about this aspect too.)

Or maybe it was as simple as thinking that he should stick by his colleague. Esprit de corps, teamwork, loyalty to colleagues, to a common aim or work purpose, collaboration are all highly valued (from childhood onwards), trained for, rewarded. It is easy to side instinctively with “us” against “them”. It goes with the grain of human behaviour. Those seen as snitches are not viewed favourably. Little wonder then that people might find it hard to realise that loyalty to misbehaving colleagues is misplaced.

If police officers sometimes find this hard, despite the importance of their role, how much harder is it for the rest of us. So maybe we need to realise that creating the sort of culture where people do not turn a blind eye, where people instinctively challenge or call out wrong behaviour, takes something deeper and more sustained than just a whistleblowing policy, however well-written, and annual training.

Photo by Matt Seymour on Unsplash

To Discipline or Not?

April 30 2019

The recent decision of the Solicitors’ Regulatory Authority to strike off Emily Scott, a junior solicitor, for being involved in misconduct while a trainee, only belatedly raising her concerns as a whistleblower after she left, raises, albeit tangentially, the difficult question of when – or if – it is ever right to discipline an employee for misconduct if they are also a whistleblower about that misconduct.

In this case, Ms Scott felt unable to report clients being defrauded by her firm while she was a trainee.  She was involved in perpetrating the frauds on the instructions of the partners, the Disciplinary Tribunal finding her conduct to have been “deliberate, calculated and repeated”.  It was only after she had left, some two years after the conduct in question, that she reported the fraud to the SRA who then took action against the partners of her firm and, controversially, her.  The Tribunal reached its decision on Ms Scott despite accepting that she had been young, a trainee and had been “deceived, pressured, bullied and manipulated” by the partners into both carrying out the fraud and covering it up.  The fact that she did not use the confidential route open to her by reporting the matter to the SRA was a factor, as was the fact that part of the conduct involved misleading the regulator when it sought answers.  

Ms Scott feels that she has been punished for – eventually – doing the right thing, with the Tribunal refusing to accept her mitigation, even while expressing sympathy for her.  It is easy to feel sorry for her: in her first job, anxious to impress, worried about her prospects if she refused or left and feeling bullied.  In such circumstances, it is not hard to see how someone can justify to themselves what they are doing and convince themselves that they are still an honest person despite doing dishonest things.  

Still, the SRA took the view that a solicitor, even a trainee one, is rightly held to a very high standard and there can be no excuse for dishonesty.  Our system of justice depends on its practitioners being utterly trustworthy.  

Will such a decision nonetheless lead to unintended consequences?  Misconduct is often perpetrated by the most junior employees being made to do something wrong by superiors who seek to keep their hands clean.  So it will often be those most involved who have the best knowledge of misconduct which should be reported and stopped.  If their own careers will be lost – as Ms Scott’s has been – will this encourage those with the relevant knowledge to speak up?  The SRA is, understandably, reviewing its rules in light of this case in order to ensure that it gets that balance right.  

Ms Scott was not retaliated against by her employers for being a whistleblower.  She was disciplined by a regulatory authority, which has different and wider concerns.  Nonetheless, all employers will likely come across whistleblowers who have themselves been involved in bad behaviour and who may seek to protect themselves from the consequences of such bad behaviour by blowing the whistle, sometimes at a late stage when an investigation has already started – or is about to.  Ensuring that a whistleblower is not retaliated for speaking up but is not also given a free pass against being disciplined for misconduct requires the most careful of judgments.

But the moral – however harsh it may seem – is that, ultimately, a professional – or someone aspiring to be one – is responsible for their own actions, that they need to do the right thing even if this prejudices their personal position and that acting dishonestly but saying to yourself “I’m not a dishonest person” may be comforting but is still a dangerous self-deception.  It is our actions that make us what we are.

Similar considerations arose in the case of Dr Bawa-Garba, a paediatrician convicted of manslaughter over the death of a young child from sepsis, suspended from practice, then struck off and recently reinstated.  There are, however, some obvious differences between the two cases:-

  1. The doctor was open about – and admitted – her mistakes immediately and was convicted in court.  The initial medical disciplinary panel felt, however, that it was not just her mistakes which led to the child’s death and that these wider failures were a reason why her additional punishment should be suspension, during which she could do the necessary training to learn from those mistakes and improve her professional competence.
  2. It was the General Medical Council which sought to strike her off on the basis that her standards as a doctor were so far below those to be expected that she should not be allowed to practise.
  3. The concern within the medical community at this decision was that this would lead to the wrong consequences, both for doctors and patients.  Criminalising individual mistakes would be more likely to lead to cover ups and a failure to learn from problems.  It would have a chilling effect on health professionals’ willingness to be candid about errors and thereby learn what to do better next time.  There was also significant concern that the wider failings which had been identified – lack of staff, poor supervision, inadequate resources, poor note-keeping by others – were being ignored in favour of placing the blame, unfairly, all on one individual.  
  4. Most obviously, the consequences of the wrongful behaviour were much more serious in the doctor’s case than in Ms Scott’s.  Yet it is Ms Scott who has lost her career and the doctor who will continue to practice.

Unfair?  Superficially maybe.  Is gross incompetence in a doctor less bad than dishonesty in a lawyer? Whatever the doctor’s failings, she was not dishonest; indeed, her very openness about her failings made it easier for her to be convicted and disciplined.  A lack of knowledge or competence is something which is capable of being remedied.  

Whereas integrity and honesty and the courage to say no when asked to do the wrong thing go to the heart of what it means to be a lawyer.  If they are missing or capable of being so easily subverted, what else is there?  

And while the work culture in which a person operates matters, often significantly, and frequently needs improving, it should never be an excuse for behaving without integrity.

 

Photo by Vladislav Babienko on Unsplash

Quis custodiet ipsos custodes?

October 16 2018

Some 5 years after the Parliamentary Commission’s withering report on banking culture, it is the House of Commons itself – its MPs, senior management and staff – who face their own brutal and shocking appraisal.  The disgraceful and, in some cases, criminal conduct by some of them and their collective failure to deal, legally or adequately or at all, with bullying and harassment of junior staff, particularly women, by senior staff and MPs is laid bare in this report by retired judge, Dame Laura Cox.

It would perhaps not have been politic of those bankers – quizzed by the Parliamentary Commission about their failure to raise concerns about the misbehaviour of fellow traders and bankers – to have pointed out to their inquisitors that the number of MPs who blew the whistle on fellow MPs who broke the expenses rules and, in some cases, committed fraud was the grand total of zero.  (It would though have been hugely enjoyable for fans of sanctimonious humbug.) Those in the financial sector who had to take the MPs’ justified criticisms can perhaps now enjoy a touch of schadenfreude when they read Cox describe the omertà that many MPs practice in respect of bad conduct by one of their number” and that “Members turn a blind eye to dishonourable behaviour by others”. 

But the report goes further.   Despite the 1995 Nolan Committee report  on Standards in Public Life making it clear that MPs had to display the highest standards and that “it is essential for public confidence that they they should be seen to do so”, it seems – and who could possibly have foreseen this? – that self-regulation doesn’t work.   The Cox report describes an entrenched culture “cascading from the top down, of deference, subservience, acquiescence and silence, in which bullying and sexual harassment have been able to thrive and have long been tolerated and concealed.”  Processes and policies, no matter what fluffy names they are given (Cox is particularly critical of the “Valuing Others” policy) are described as not fit for purpose and not even compliant with existing laws on harassment and discrimination, let alone best practice.  Investigations are inadequate and carried out by amateurs.  Confidentiality is not respected, staff are fearful and unsupported and retaliation – or threats of it – are common.

The report makes for grim reading.  Even grimmer in the two days since its publication has been the defensive reaction of MPs and senior staff at the Commons at the very idea of having to take action beyond the token.  The House of Commons may consider itself a special case though, as Cox acidly points out, while “Members of Parliament are elected representatives…their mandate does not entitle them to bully or harass those who are employed….to support and assist them.”

But this report has much from which every employer, from senior managers down, and not just HR Departments, can learn.  In an era of #MeToo, of younger generations being unwilling (rightly) to put up with boorish (at best) and criminal (at worst) behaviour in the workplace, when an unhappy employee can create unwelcome publicity and force companies to take action, all organisations can learn from the failures so forensically dissected in this report.   It is not just Parliament which is a stressful workplace.  All workplaces are likely to face these problems to a greater or lesser extent and it is no easy task trying to handle matters which can range from someone being insensitive and impolite, via bullying, leering, insulting remarks all the way to actions which may amount to serious crimes.

Three points in particular are worth highlighting:

  • “devotion to process and language rather than to real effectiveness” is a waste of time.  Procedures and rules are necessary but never sufficient.  They are merely proof of the importance with which the issue is viewed.  But the real test of whether you have the right policies in place is whether your employees trust you to investigate properly and act on findings, no matter who is involved.  Without that trust even the best written procedures are mere will 0′ the wisps.
  • Those at the top have to lead by example.  In yesterday’s radio interview  Dame Laura posited three questions which those at the top should ask themselves when having to manage cultural change:
    • “Do I understand that radical change is needed?”
    • “Can I deliver that change?
    • “Will staff have confidence that I can deliver that change?”  Answering that third question honestly requires a level of self-knowledge and courage that is not as common as it should be.
  • Codes of Conduct are a fancy way of reminding people that good manners, politeness and civility matter.  At their heart, good manners are about being kind to others (and kindness is a much underrated virtue).   Employees, managers, colleagues, the temporary and contracting staff who do the myriad tasks which keep a workplace going, however senior or junior, are human beings, not simply resources.  Politeness and thoughtfulness to those around us cost nothing, can help mitigate even the most stressful of jobs and are the bare minimum which should be expected of – and for – all staff.

And, finally, not for the first – and certainly not for the last – time, if a problem happens, don’t ignore it.  “This cycle of repeatedly reacting to crises only after they have developed into crises, and sometimes only after unwelcome publicity, is a perilous approach to adopt for any organisation, but it is completely hopeless for a place of work.”

As for the House of Commons, if it really is serious about changing its culture, it needs to realise – as others have – that this is the work of years, not weeks or months, and is a task which is never finished.

 

Photo by Gabriel Matula on Unsplash