People management issues are often time consuming, can result in a fractious workplace and can have legal and reputational consequences for chambers. How do you then navigate the pitfalls and ensure best practice? This article aims to provide a helpful insight to tackling two different workplace issues. The first, the effective performance management of employees. The second, the new duty to take reasonable steps to prevent sexual harassment under the Worker Protection (Amendment of Equality Act 2010) Act in force from 26 October 2024.

Performance management issues

Let’s imagine a scenario: a clerk is underperforming and despite a ‘quiet word’ from the head of their clerking team, the situation has not improved and needs be addressed. This is a common problem that occurs in different forms in every workplace. Yet mismanagement of performance issues far too often results in an expensive and unsatisfactory outcome. The following practical steps are recommended:

1.Evaluate

Look at the circumstances closely and establish if it is appropriate to maintain an informal approach giving real-time feedback to allow the individual to improve. What has been communicated to the individual to date? Has the messaging been reasonable and clear? If so, has the individual understood it? If repeated informal messages are not achieving the required outcome, then proceed to a formal process. However, before doing so, consider any mitigating factors that may be relevant such as ill health/medical concerns, carer responsibilities or disabilities. Consider whether you need to make any reasonable adjustments before proceeding. If the individual’s health is of concern, ensure that you have an up to date understanding of the medical position. Consider using an occupational health adviser to provide a diagnosis and prognosis as may be required.

2. Ensure clarity and simplicity

Ensure the process you follow is consistent with the principles of the ACAS Code of Practice on disciplinary and grievance procedures.

Keep it simple. Avoid over-complicating the process with the involvement of additional steps, people and layers of legal analysis.

Appoint one ‘decision maker’ to review all of the information and decide the outcome and consider who might be appropriate to act as an appeal decision manager in the event an appeal is lodged in the future. A common mistake that chambers make in this context is making decisions by committee. Choosing several individuals to act jointly convolutes the process, increases the time required by all parties, and increases the number of people who may be criticised further down the line. There is no requirement to create a quasi court process.

Create a performance improvement plan (PIP) for the individual which:

  • Sets out the nature of the performance problem with specific tangible examples.
  • Defines clear and achievable objectives so the individual understands the improvement required.
  • Clarifies how and when performance will be measured, monitored and reviewed going forward and who will be responsible for assessing their performance.
  • Confirms the support and any training that will be provided.
  • Ensures all metrics and timescales are fair and reasonable in the circumstances, taking into account any mitigating circumstances if appropriate.
  • Sets out the potential consequences of failing to achieve the improvement in performance in required.

3. Be diligent and decisive

Once the review date has been set, stick to it where possible. It can be tempting to delay difficult decisions or dilute the process. Adhere to review deadlines unless delay is absolutely unavoidable, for example in light of medical issues.

Evaluate progress and hold a meaningful and honest discussion about continuing shortfalls and improvements. In the event that the individual fails to improve as reasonably required by the relevant deadlines, the decision manager should decide the outcome, which may include a warning or dismissal. Avoid passing on the decision to other individuals or creating a protracted or unnecessarily complex process for decision-making.

4. Create a positive culture

Plan ahead before ‘fire fighting’ the next performance issue. Provide those who have responsibility for managing the staff in chambers with training on how to give effective feedback on a real time basis and avoid the temptation to put off uncomfortable conversations in the hope that performance will improve over time on its own. Ensure appraisals and reviews are adhered to within the relevant timetable and that honest and constructive performance feedback is given. If you do not have one, put in place a non-contractual principle-based policy, compliant with the ACAS Code as a guide to how under performance will be managed.

New proactive duty to prevent sexual harassment

We turn to look at the new proactive duty placed on employers to take ‘reasonable steps’ to prevent sexual harassment in the course of employment from 26 October 2024 and what is required.

It is clear that adopting a ‘one size fits all approach’ or having a template pre-determined checklist will not satisfy the duty. Organisations must also refer to the eight-step employer guide from the Equality and Human Rights Commission and are unlikely to be able to comply with the duty unless they carry out a risk assessment. But in practical terms, what does this require for a set?

1. Collaboration

Start a dialogue with members, clerks and any other staff in your set. Garner opinions to ensure you have an educated understanding of the contexts in which the risk of sexual harassment may arise. Have there been any complaints or incidents of sexual harassment in chambers in the past and, if so, what lessons can be learnt from them? Where might incidents occur in the future? Consider whether you may receive a more accurate picture if you enable colleagues to share their views and concerns anonymously if they wish.

2. Assessment

Consider the following areas of risk:

  • Social events and other work events where alcohol may be consumed, such as hosting or attending third party evening seminars, conferences or training.
  • Power imbalances, e.g. between barristers of varying seniorities and between clerks and barristers.
  • Travelling to conferences and court and any other work-related trips.
  • Interactions with couriers, building maintenance, and any other third parties.
  • One to one interactions between colleagues.
  • Any workplace cultures of ‘banter’ that may not foster a promotion of zero tolerance to sexual harassment.
  • Areas of chambers that lack diversity.
  • Vulnerability of lone workers either in a communal workplace or from home (where there are no peers or colleagues to interact with in the event harassment takes place).
  • Particular areas of the physical workplace lay-out (e.g. isolated areas) that could facilitate harassment.
  • Other relevant scenarios where sexual harassment has taken place in the past or individuals may be vulnerable to it taking place in the future.
3. Documentation

Create a written risk assessment noting:

  • Analysis of the key risk areas and findings following your discussions with colleagues.
  • Consideration of incidents of sexual harassment and effectiveness of past measures to: 1. prevent sexual harassment, 2. permit effective reporting, 3. provide support to any victims.
  • Proposed action and timeframe.
4. Action

Implement the proposed actions:

  • Develop effective policy wording as soon as practicable, either as a standalone policy or alongside existing anti-harassment policies. Include within the policy details of the complaint handling process and the support available to individuals.
  • Implement an effective reporting system.
  • Conduct effective training for all.
  • Ensure effective processes to deal with (and seek to prevent) third party harassment.
  • Monitor and evaluate effectiveness. 
See also ‘Stop it – the duty to prevent sexual harassment and what it means for the Bar’ Rachel Krys and Sam Mercer from the Bar Council’s equality team explore the new duty and what this means for the Bar.