The ripple effect: the family law consequences of allegations of sexual misconduct in the workplace
Law firms continue to receive allegations of sexual misconduct, often related to historic events. Earlier this year, figures confirmed that the number of reports of sexual misconduct in the legal profession reached a record high in England and Wales. Following the revival of the #MeToo movement in late 2017 – a phrase first used in this context on social media back in 2006 - individuals remain emboldened to speak out and formally raise concerns. The standard of ethical behaviour expected of senior individuals by others in the profession has arguably changed. As a result, allegations of historic misconduct, including sexual misconduct, are likely to continue to be revisited. Conduct that might once have been overlooked is unlikely to be so now, and even “forgotten” incidents of the past could still have significant consequences today.
If a law firm does receive a complaint involving allegations of misconduct of this nature, it should ensure that the complaint is properly and thoroughly investigated and, where necessary, any proven wrongdoing is addressed. It is also paramount that an appropriate record of each stage of the investigation process - including any outcome – is kept. There are many reasons why it is important that law firms properly address these serious allegations. Failure to follow due process not only exposes the firm on a legal and regulatory level, but the way in which it handles such matters is also increasingly relevant to a firm’s reputation, culture, brand and image.
Law firms will need to navigate a number of processes when it receives a complaint of this nature. Depending on the circumstances, the firm could be dealing with any of the following:
There is an expectation that all such allegations will be addressed openly and forensically. In terms of the individuals involved, as regulated professionals, the outcomes of these processes have potentially wide ranging and life changing ramifications. The potential impact on the complainant and the accused is often obvious. However, this can also extend to the individuals tasked with investigating the allegations and reaching a conclusion on, for example, a grievance or disciplinary outcome. While these individuals might not be solicitors (e.g. HR professionals), they still fall within the SRA’s regulatory remit as they are employees within the SRA-regulated law firm and are therefore SRA regulated individuals in relation to whom the SRA has a regulatory hook. Those charged with these roles should receive, and will increasingly expect, appropriate training and support to fulfil their duties. Where relevant, the potential for any concurrent or subsequent regulatory and/or criminal investigation should also be considered when conducting any internal investigation.
Sexual harassment and the use of non-disclosure agreements (NDAs) – under the heading “integrity and ethics” - is still regarded by the SRA as an area of focus and remains a priority risk for the 2019/20 Risk Outlook. The Outlook document sets out what the SRA considers to be the key risks and challenges faced by the profession. The SRA’s website also includes a section on sexual harassment as part of its “diversity toolkit”. This is a helpful resource, and also contains a number of links which serve as a helpful reminder about the use of non-disclosure agreements in settlement agreements.
Furthermore, following the International Bar Association (IBA) publishing a report entitled “Us Too? Bullying and Sexual Harassment in the Legal Profession” in May 2019, the IBA Legal Policy & Research Unit (LPRU) has spent the past 12 months analysing this data to understand the nature, extent and impact of the problem and to inform the development of solutions. The 2019 report outlined 10 recommendations for achieving positive change, and highlighted next steps the IBA will seek to take. This 12 month period included an unprecedented global engagement campaign, during which the IBA visited 30 cities in six continents, meeting hundreds of stakeholders. In May 2020, the IBA announced the next phase of work, which will include the setting up of a comprehensive online resource hub.
The three key elements to this are:
A key aspect of sexual harassment complaints has often been an imbalance of power between the complainant and the accused. In a similar vein, we are now also increasingly advising on allegations of other forms of discrimination and/or bullying being raised against senior individuals in professional services firms, whether these relate to current or historic events.
Many law firms have already updated their policies and procedures to reflect the current standards expected of those they employ in relation to behaviour. Those that have not yet done so would be wise to address this. Given that sexual misconduct complaints often involve an imbalance of power, our view is that firms must take a great deal of care particularly in relation to hiring and promotions, and the on-going training provided to staff to ensure that everyone, but particularly those with management and supervision responsibilities, conducts themselves appropriately.
Our top ranked Regulatory, Employment and Criminal Litigation lawyers have unrivalled experience in investigating and advising both organisations and individuals dealing with sexual misconduct in the workplace. Reputation Management is often also a key consideration as press interest is common. Our team of Reputation Management lawyers can quickly assess the situation and give strategic advice on courses of action to take in respect of privacy, defamation and data protection issues.
Jessica Clay is a Senior Associate in the Regulatory Department specialising in legal services regulation, with a focus on regulatory compliance, legal ethics, investigations and public law matters.
Kirsty Churm is a Senior Associate in the Employment Department. She advises both employers and senior employees on all aspects of employment law and employee relations issues, including contentious and non-contentious matters.
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