Lawcovernotes July 2019

When fatigue and sustained pressure become the newnormal Solicitors are used to working hard. In an industry which charges by the hour, long days and sometimes nights begin to seem normal. But there are dangers for solicitors pushing themselves and their staff to work too hard for too long. In 2018 a number of law firms were put under pressure by clients who had been required to meet very tight deadlines by the Hayne Royal Commission into the financial services sector. Many firms reported working around the clock to get documents and witnesses ready to appear before the Commission. One large firm acted for multiple clients appearing before the Commission. In August 2018, the firm’s Melbourne office became subject to a Worksafe inquiry following an anonymous complaint from a staff member about being required to work through the night, and not being allowed to go home to sleep. Following a visit by Worksafe inspectors, the office had notices posted on every floor, which said the firm may be in breach of the Occupational Health & Safety Act (Vic) in relation to fatigue and overworking staff. The NSW equivalent legislation, the Work Health and Safety Act 2011 requires, so far as is reasonably practicable, a person conducting a business to provide and maintain safe systems of work. Arguably, law firms which require staff to work extended hours over long periods of time are failing to provide a safe system of work because the adverse effects of sustained fatigue are well documented. Those effects could lead to accidents in the workplace, accidents getting to or from work, or impact the mental health of staff. If this firm’s workplace is found to be unsafe, it faces a sizable fine and may be required to change its policies in relation to staff working excessive hours, or being placed under excessive pressure. However, the more significant and lasting consequence of this incident is likely to be the damage to the firm’s reputation with graduate solicitors and clients, and the impact on staff morale. Solicitor fatigue can have adverse impacts on a firm’s business, aside from staff health and safety. Lawcover receives a number of claims every year arising from small errors which arise because staff were stressed or tired in the midst of conduct of a large matter. The consequences of a small oversight, like forgetting to attach a document to a contract or failing to notice a zoning restriction, can have significant consequences when they turn into professional negligence claims. A law firm is a workplace like any other and it is subject to the same requirements of workplace safety. Safe work practices should be implemented in all firms to ensure not only the mental well-being of staff, but also their physical safety and long term health. Firms could address these issues by implementing fatigue management policies, with consideration given to how mental health issues (arising from fatigue) are managed within the firm. This investment in workplace safety is also likely to lead to higher quality output and productivity, and happier partners, staff and clients. Elissa Baxter General Counsel 13.