Today a likely fatal blow to well-being in the workplace was struck by the Administrative Court (Flaux LJ, Jeremy Baker J) in SRA v James and others [2018] EWHC 3058 (Admin).
It is well-known that if a solicitor is guilty of dishonesty in and about the work he or she does, they will be struck off unless they can show “exceptional circumstances”. For a while it was thought that extreme and intolerable work pressure giving rise to mental health issues, in turn giving rise to an act or acts of dishonesty, might suffice.
Not so after SRA v James. In short, unless the work stress plus mental health sequelae lead to a one-off act of dishonesty – a single “moment of madness” – the circumstances will not be exceptional.
Flaux LJ, giving the leading judgment of the court, held
- At [103] “it is difficult to see how in a case of dishonesty … the fact that the respondent suffered from stress and depression (whether alone or in combination with extreme pressure from the working environment) could without more amount to exceptional circumstances.”
- At [110]: “I do not consider that mental health issues, specifically stress and depression suffered by the solicitor as a consequence of work conditions or other matters can, without more, amount to “exceptional circumstances”, justifying a lesser sanction than striking off.”
- At [113]: “pressure of work or extreme working conditions whilst … relevant by way of mitigation to the assessment which the SDT has to make in determining … sanction, cannot either alone or in conjunction with stress or depression, amount to exceptional circumstances.”
The court acknowledged that while the toxic effect of some working conditions in which erstwhile honest but vulnerable lawyers have to work is a relevant area to examine in cases of bad service, carelessness or negligence, it will seldom if ever be of any weight in dishonesty cases unless the dishonesty alleged was truly a one-off “moment of madness”.
In this era, when well-being in the workplace is so much, and rightly, to the fore, it is perhaps out of touch for the court to hold that despite it being “sadly only too common for professionals to suffer such conditions because of pressure of work or the workplace or other, personal, circumstances”, those conditions cannot of themselves amount to exceptional circumstances in cases where the professional feels unavoidably pressured into doing the wrong thing. An opportunity to put wellness on the legal map may have been missed.
Disclaimer: this article is not to be relied upon as legal advice. The circumstances of each case differ and legal advice specific to the individual case should always be sought.
© Paul Parker of 4 New Square, November 2018.
Paul Parker is recognised as a Leading Professional Discipline and Regulatory Law Junior. He has substantial experience of appearing before disciplinary tribunals and in the higher courts on appeal. Paul also specialises in professional liability claims involving accountants, financial services professionals, lawyers, insurance brokers and construction professionals and does a variety of general commercial and chancery commercial work, with particular emphasis on insurance law.
