About Duty Of Care
What are those who manage talent’s responsibilities beyond their legal fiduciary duties and promoting their client’s careers to the best of their abilities?
It’s a given that every business decision also has a moral and ethical dimension, but things aren’t cut and dry when it comes to those harder-to-define dimensions relating to mental health, welfare, and wellbeing.
We believe that Duty of Care in these dimensions operates at 3 levels – to your clients, your employees, and yourselves. If you’re taking care of all 3, you’re in a fantastic place. If not, we’d like to help you get there.
A bit like GDPR, Duty of Care can be a grey area that’s often avoided because the answers are unclear and uncomfortable, require additional work and sometimes the benefits aren’t immediately apparent – but is increasingly becoming the subject of questioning, deeper scrutiny.
We believe duty of care to be such a serious issue it can become a matter of life of death – and needs serious thought, planning and implementation. We can help.
With no concrete or generally accepted definition of duty of care for the managers of talent, it’s even harder to imagine, and most commonly an individual choice or omission. No two approaches to duty of care are the same, nor should they be. Much will be dictated by the needs of the client, the individual employees, the organization, the budget – and your own experiences.
In UK law, there is a statutory obligation for employers to ensure the health, safety, and welfare of their staff, and this includes physical and mental wellbeing. But this does not extend to management contracts and is at best open to interpretation, at worst subject to tokenistic gestures, or altogether ignored. The obligations are unspecific and often limited to when the cause of an issue is directly linked to the workplace, traditionally occupational health type injuries.
There are client contracts, employment contracts, service contracts – but where are the psychological, ethical and moral contracts?
Across the spectrum there are many attitudes and approaches to duty of care, conscious and unconscious, ranging from zero to overkill. With the client’s personal lives and professional careers often inextricably entwined, how possible is it for a manager to separate them and take responsibility and accountability for one but not the other – especially when the fulfilment of professional obligations takes such a toll on a personal level?
Has there been a change? Where does responsibility lie around artist or employees personal conduct? When does inattention to duty of care become negligence?
Stereotypical challenging or self-destructive behaviour from clients and employees alike is a particularly difficult area to navigate – and is also the one that can lead to the worst consequences, including, tragically, fatalities.
Within “personal conduct” and “behaviour” we include the areas of alcohol and substance misuse. A closer examination of attitudes and perceptions to these “lifestyle choice” behaviours are necessary. When they become excessive or problematic, we need to be open to the possibility that these are forms of self-medication – coping mechanisms to deal with physical and mental health issues such as anxiety, depression, exhaustion, insomnia, physical or emotional pain, loneliness, fear, and insecurity, etc.
We should consider that a duty of care includes not only addressing these individual issues but also putting in place preventative measures up front, in anticipation of these possibilities, and having networks, systems and protocols in place to enable quick and effective actions when a serious incident occurs. It’s a shame that normally action is only taken when such a crisis happens.
We should move from a place of ‘tolerating’ this behaviour or seeing it as ‘part of the journey’, ‘coming of age’, ‘goes with the territory’ – and look at it as self-soothing for underlying issues that need urgent attention lest they surface and become uncontrollable. Often what is perceived as recreational use is in fact a desperate search for numbness – the necessary anaesthetic to achieve oblivion daily.
In the creative industries the focus is often around alcohol, substance, or behavioural issues – but it’s hugely important to recognise that these do not have to be present for someone to be suffering acutely from a myriad of physical and mental-ill health conditions, work-related or not, which require prevention, intervention, treatment, and management. It’s of tantamount important that everything is treated with equal weight and gravitas, taken seriously, and considered from a risk perspective. And most important, appropriate, and expert action put in place.
Stigma prevents people asking for help and allows treatable conditions to progress as far as crisis level. Your clients and employees knowing that they can be listened to and heard is massively important – and that the necessary action will be taken – is massively important.
We’re offering a space of conscious competence. Doing it right and knowing it. To alleviate the pressure and anxiety leaving you to do what you do best.
The interpersonal relational dynamic is another key area that leans into the duty of care space and affects how it is performed. Or in other words, the interplay between the personal baggage that the client, employee, and manager bring to the party and how it affects relationships.
For example, Co-dependency is commonly understood as a relational trauma bond – if someone who has experienced Adverse Childhood Experiences (ACE) in their family of origin comes across someone else who has similar in theirs, it’s likely they may unconsciously play out their dysfunctional family roles in their professional roles, which could be unproductive and cause tension. There are infinite ways for this scenario to present itself and can become the ingredients for a messy client or employee relationship with blurred boundaries and mucky co-dependency. It’s possible that some people who go into talent management may have a predisposition to dysfunctional and compulsive caretaking, making these kinds of scenarios all the more likely.
Younger managers or younger employees of management companies often find it difficult to separate their issues from their artist’s issues causing a complex interaction at a subconscious level which sometimes leads to the development of inappropriate role-taking. But it’s not necessarily something reserved for the young. These triggers happen at all ages, in all walks of life, and across generations. And are all equally destructive. Great communication facilitated by experts is necessary to overcome these obstacles.
A responsible duty of care involves being sensitive to the possibility that these kinds of damaging situations may play out in the client/manager workspace and putting in place preventative safeguards in the form of healthy communication and psychoeducation, and the opportunity for therapy or coaching, facilitated by experts in their field. Facilitating such a workplace will also lead to increase productivity.
We believe that the pressures of being a manager are enough, without the stresses and anxieties associated with fulfilling an unclear, undefined, and unspoken ethical and moral duty of care.
Without a clear definition, a well-intentioned manager can be at risk of taking on the role of a surrogate parent, older sibling or even babysitter. This implies looking after a young child and is not appropriate; infantilizing is not the answer – nor is the “laissez-faire” attitude that the client’s personal lives are exactly that, and not in the manager’s orbit or area of responsibility.
What is a fair and reasonable approach?
There is no consensus, little guidance and certainly no regulation.
So, in talent management terms, to examine the duty of care to clients and employees is to explore moral or ethical obligations, alongside fiduciary duties, which are constituted by the legal obligation for a manager to do what is in the best interests of their client’s business interests. Mental and emotional safeguarding are traditionally not included in the list of management duties, but as we have stated have very often been a whole other dimension of a manager’s world.
Looking forward we need to re-evaluate what managers are ethically obliged to do and what they may expect to be held accountable for – or better still what an accepted and welcomed industry standard that protects everybody could look like.
We believe that if you have a robust and active duty of care policy there’s nothing to be held accountable for, and by alleviating you of that burden, we can also help you fulfil your duty of care to yourself.