In-house: As the workplace evolves

Diversity and inclusion; hybrid working; ESG (environment, social and governance) – and legal updates and technology besides. Yes, the 2022 In-house Annual Conference, with St James’s Place as headline sponsor, hit the mark with the issues of the moment.

Both Society President Murray Etherington at the outset of the conference, and ILC co-convener Sheekha Saha in winding it up, spoke of the “in-house community”, and a sense of community was evident in many of the presentations, of which this report can only give a selective account.

Leading on climate and ESG

It was ESG that dominated the first session. In his keynote address on how in-house counsel are driving organisations’ climate and ESG action, Adam Woodhall, chief executive of Lawyers for Net Zero, challenged in-house lawyers to take climate and ESG leadership – a snap poll of his audience indicating strong agreement that they should be doing just that. Posing the question “What is leadership?”, he defined it as “a process of influence which maximises the efforts of others towards the achievement of a goal” – something all in-house counsel can be part of, bringing influence to bear with the C-suite, and via them the organisation as a whole.

With society facing an existential threat from climate change, Woodhall warned that ESG and legal risks are growing exponentially with the rise in activism, and new legislation. But so are value creation opportunities, and good governance represents an opportunity for an organisation. (It can be good for your career too.)

Although the net zero target date is more than 20 years away (2045 in Scotland; 2050 for the UK), he emphasised that it is a journey that needs to be planned, and efforts to date are falling behind where they need to be. The next five to 10 years are the critical time to get going, and since we don’t know what we will be doing in 20 years’ time, we should focus on the shorter term. 

Answering the question “What can I do?”, he said that, while not everyone can do lots of things, we can provide credibility by supporting the drive for net zero: “People don’t think of in-house lawyers as tree huggers!” Use your position to ask necessary questions, and aim to go beyond compliance: “Legislation is behind where the science is telling us we need to be.”

Woodhall’s five principles for action are: champion net zero internally; practically support rapid action; learn and share key knowledge; influence suppliers; and champion externally. People can use their common sense and instincts, and apply these principles to the areas where they can take leadership. 

For resources and guidance, he recommended you check out chancerylaneproject.org 

ESG: managing the risk

The ensuing panel session delved into related risk concerns for in-house counsel. For some, ESG holds a bit of a “fear factor” but, Roger Leese of Clifford Chance told us, ESG reporting is not much different from financial reporting. Non-financial factors too are key to business performance and success; they are important to key stakeholders and increasingly also to regulators.

Roddy Wan of Scottish Power agreed that the parallel was apt – we should think about ESG as financial reporting but with more holistic objectives and factors. Some things we probably report on already, such as the gender pay gap or modern slavery.

There is a massive range as to what progress businesses have made with this, but it is coming to be seen much more as within the role of legal and compliance, with a much higher board focus – though often that still arises through a single issue needing dealt with in a firefighting sort of way.

While there may be a question of who has the necessary skills, Wan suggested these will probably exist within the business, and a good start would be to map out what needs to be done and who is qualified to contribute. As a large organisation his company has teams of people dedicated to aspects such as carbon reporting or health and safety, but it “scales up and down” – people have skills underlying their day jobs.

For those looking for a reporting framework, there are a lot out there to choose from, though often not very holistic. If you are legally required to undertake such reporting, the question will be answered for you; if you need to pick one (or more), Leese’s recommendations included the TCFD (Taskforce on Climate-Related Financial Disclosures), now mandatory for the largest companies; the UN Sustainable Development Goals; and the UN Guiding Principles on Business and Human Rights.

Even if not obliged to report in this way, consider whether you might have to in future; and it may be the right thing to do in any event, Wan noted.

Wellbeing under hybrid

Given our radically changed post-COVID working environment, a further panel session was devoted to “Building a supportive culture for a remote and hybrid workforce”. This does not involve, as one chief executive mistakenly thought, announcing that everyone would be in the office three days a week – they quickly “got pushback” – but a process of talking and listening involving the whole organisation, and having a shared set of values as well as understanding how its people work.

Karen Wiles of Aberdeenshire Council identified the principles of hybrid working as “based on trust, not bums on seats”. Focus on output, not presenteeism; no one size fits all; it must be based on meaningful conversations between line managers and workers, and on fair and equitable procedures equally accessible to all. Teams have to consider how they will work together, and identify times when they can expect to see each other. Domhnall Dods of CityFibre also placed trusting each other as his first guiding principle, followed by agreeing a way forward together and working out the best balance; communicating as a team; setting clear expectations; and putting a big focus on mental health by constantly checking in with each other. He favoured meetings involving everyone taking part through the same medium, for best participation.

Expanding on wellbeing, his organisation encourages everyone to get out for exercise in the middle of the day – they try and avoid meetings between 1 and 2pm to permit this. They also have a large and growing number of mental health first aiders; and guidance for setting up meetings (would a short call suffice instead? – some people are fatigued by long meetings).

Scottish Parliament solicitor Kenneth Htet-Khin also recommended mental health first aid training. Nearly everyone in his office has taken part; there is no expectation that they will all act as first aiders, but it increases their awareness of the issues, and the office culture has benefited, especially when people are feeling under pressure.

An initial talk when the office was introduced to the concept led to three big things. First, an office mission statement, borrowing from the Parliament’s values and policies but also charities’ mission statements. This covered promoting mental and physical health, mutual support during ill health, and breaking down stigmas. The second was a set of practical, personal objectives people could adopt, such as taking proper account of colleagues’ diversity needs, and supporting wellbeing initiatives, which now feature among the core requirements when recruiting. These objectives led to a wellbeing strategy document, including sessions on how people felt about returning to the office, and manager training on holding difficult conversations. The third main outcome was committing resources to the first aider training and to a library of books on wellbeing.

The panel was asked how their organisations were making sure these initiatives would be maintained. For Htet-Khin it was about getting team buy-in and understanding that there are different ways of working. Dods said his company didn’t have the choice: expansion during lockdown meant it had more people than the office could accommodate. And it was now understood that people were more productive holding virtual meetings than travelling to meet.

For Wiles, it was part of being an employer of choice, which meant offering the support and flexibility that people would want to come to. She commented: “We’re not doing this for fun, but because it makes sense, so all the imperatives will remain.”

Inclusion – by someone who knows

The closing keynote speaker was prosecutor, community adviser and author Pauline Campbell, profiled at Journal, June 2022, 36. Speaking to the title “Inclusivity: boldly going where no one has gone before”, she reviewed the history of racism and efforts to counter it from the 1960s when she was born – legislation having a crucial role

Authenticity is the key to inclusion, Campbell said – being able to be who you really and truly are. As a woman of Caribbean background, she continued, “I feel I am part of British society, but there are elements of me I have to think of before coming into work.” Like how she does her hair, or whether to wear bright colours. Her biggest disadvantage was if she got angry – it happens to all of us, but as a black woman she is labelled aggressive if she does. But why should she be regarded differently from, say, Margaret Thatcher, who instead came to be labelled the Iron Lady?

The message from her survey of the immigration and race relations legislation developed in the 1960s and 70s was that the journey is not an easy one, “and it doesn’t matter what colour you are, it isn’t easy for any of us”. But the strongest component of racism, Campbell believes, is those of us who do nothing about it. Inclusion, for example in an office, can’t just mean lip service – “It’s got to mean something. It’s got to mean something to you.” However what didn’t use to happen, and it makes her emotional, is that people are now coming to her and saying, “I need to be more inclusive for my team, but I don’t know where to start”. She responds: “Don’t you realise? You have just started by telling me that.”

Are you brave enough to truly believe in diversity, she asked, and to stand up against instances of racism? “We all need each other for this to work.”