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Employee wellbeing is now a ‘positive legal obligation’ — and one that needs to be met

With 90 per cent of the Australian workforce reportedly overwhelmed and despite new WHS regulations coming into play in recent years, those in the legal profession are still at an increased risk of burnout and poor mental health.

user iconLauren Croft 27 March 2023 Big Law
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A recent poll undertaken by Select Wellness of 200 employees from a diverse range of industries showed that 90 per cent of respondents were feeling overwhelmed and uncertain about the future.

This followed a June 2022 analysis of over 1,000 mental health and wellbeing interviews that measured the severity of stress employees reported as experiencing. In the first half of 2022, 60 per cent of employees reported their stress as being “overwhelming”, “severe”, and “extreme” compared to 5 per cent in the 12 months prior to that.

This, according to Select Wellness, contributes significantly to burnout — something the legal profession is all too familiar with.

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In fact, a recent poll conducted by Lawyers Weekly found that lawyers are “very exhausted”, with exhaustion and burnout in the profession being an issue flagged by a recent panel discussion held by the Law Society of NSW.

This is a notion that a number of legal recruiters and legal professionals have agreed with; in July last year, Travis Schultz & Partners associate James Leggo said that “modern Australian work culture is not something to be envied” and that he has already seen many practitioners leave the legal sphere entirely, in search of greater work/life balance. Burnout was also revealed to be of top concern to in-house legal teams, too.

Select Wellness co-founder Martine Beaumont said that during, and following, the pandemic, a vast combination of things caused a spike in burnout, including an increase in virtual, back-to-back meetings, working-from-home boundaries being “obliterated” and leaders in particular being called on to manage more mental wellbeing in the workplace, which is emotionally taxing. 

“Continual disappointments, climate despair, global unrest and economic uncertainty have led to a collective feeling of hopelessness and negativity. Women’s rates of burnout are increasing at a faster rate than men[’s]. This is thought to be due to women often carrying a heavier emotional load both at work and at home,” she said. 

“But over the last 30 years, ensuring and supporting employee wellbeing has gone from a taboo topic to an informal responsibility to an expectation and is now a positive legal obligation.”

New definitions of concepts like psychosocial hazards have come into play within the profession in recent years, along with new legislative changes around mental health in the workplace.

Australian employers now have a legal obligation to identify individuals and cohorts more at risk and eliminate or minimise these risks. Examples of psychosocial hazards identified by Safe Work Australia include job demands, poor support, inadequate reward and recognition, bullying and harassment, and remote working.

And despite recent concerns around Victoria’s “fundamentally broken” WorkCover program (and the potential for it to no longer cover bullying and harassment), organisations are now under legal requirement to implement a systemic process to manage health and safety risks, including mental health, according to Henry William Lawyers director and partner Lisa Berton — who said, “we are now dealing with criminal jurisdiction”.

“The work, health and safety legislation across Australia requires persons, conducting business or undertakings to ensure the health and safety of their workers, so far as is reasonably practicable.  

“Newly introduced regulations across several jurisdictions include a positive duty on a person conducting a business or undertaking (PCBU) to manage psychosocial hazards and risks to the health of a worker and to implement measures to control the psychosocial risks,” she explained.

“The term psychosocial is basically the interaction between psychological factors and the surrounding social environment, and the effect these factors have on physical and mental health.”

Psychosocial hazards, Ms Berton opined, are rife in the legal industry and come in the form of poor co-worker and supervisor support, competing demands from clients and high workloads and job demands.

“It is not unusual for lawyers to work long hours under high pressure. Role overload is common for lawyers, and it is specifically listed as an example of a known hazard in the NSW Code,” she said.

“What is important to note about a code of practice, is that whilst you are not prosecuted for a breach of the code of practice, if there is a prosecution for breach of duties under the Work Health and Safety Act, relevant codes of practice are admissible in court proceedings, and a court may rely on the code as evidence of what is known about a hazard [or] risk, risk assessment, or risk control, in determining what is reasonably practicable in the circumstances.”

In an April 2022 High Court decision, principal lawyer of Kozarov Lawyers and winner of the Wellness Advocate of the Year category in the Lawyers Weekly 2022 Partner of the Year Awards Zagi Kozarov brought legal action against her former employer, the Victorian Office of Public Prosecutions, for the post-traumatic stress disorder (PTSD) and vicarious trauma she suffered as a result of her work.

The case was a 10-year process, eventually resulting in the High Court determining that Ms Kazarov was owed a duty of care from her employer in relation to the vicarious trauma she was exposed to and that better protective processes should have been put in place.

Additionally, the Fair Work Act 2009 is clear that 38 hours per week are considered to be “ordinary hours” — yet many lawyers work additional hours, further contributing to burnout and mental health concerns.

This is something Elizabeth Aitken, partner and national head of workplace relations and safety at SLF Lawyers, recently said was “potentially unlawful and harmful” to employees, as well as not being good for business or client outcomes.

“Burnt-out lawyers are generally not their most productive, creative or effective,” she told Lawyers Weekly earlier this month.

“There’s consequently a business case beyond health and safety for law firms to make sure that hours are sustainable and reasonable.”

In terms of mitigating the risks of burnout, Ms Beaumont emphasised that in addition to the employer, “every employee has a part to play both in managing their wellbeing and not harming the wellbeing of the people around them”.

To really improve employee wellbeing, employers need to take a whole organisation systemic approach rather than just bolting wellbeing onto people and culture. Ideally, wellbeing and employee sustainability should be a consideration in every part of the business, starting at the very top.

“In particular, thought should be given to job design, identified risks to employee’s wellbeing and how to proactively manage them, workplace behaviours, leader behaviours, and effective mental health support services. Leaders modelling of self-care and healthy workplace behaviours plays a big part in their team’s wellbeing,” she added.

“Ultimately supporting the wellbeing and sustainability of your people is not only the right thing to do but also good for business. There is no sense in organisations spending a lot of time and money attracting and keeping key talent if they then burn them out.”

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