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Sexual Harassment - Regulatory Issues for Lawyers
The subject of sexual harassment in law firms and other professional services businesses has hit the headlines over recent months.
Here, Keoghs’ professional indemnity partner Christopher Stanton explores some of the key issues for law firms, their brokers and insurers.
According to a recent report on bullying and sexual harassment in the legal profession, conducted by the International Bar Association, 1 in 3 women claimed they had been the victims of sexual harassment.
In October last year, the SRA reported that the number of sexual harassment and improper use of NDAs reported had increased by over 50% in the prior seven months. Perhaps this was due to the issues receiving more attention in the legal press, but it’ still a worrying statistic.
A recent report by the Women & Equalities Committee condemned the routine cover-up by employers of alleged discrimination in the workplace.
In June, the Solicitors Disciplinary Tribunal (SDT) ruled that an investigation into a partner at Freshfields over his conduct towards a junior colleague should go ahead, despite his argument that the case should be dismissed. The allegations are serious and potentially criminal.
The case is being heavily covered in the press (legal and national). It is not the only high-profile incident to receive coverage, with others involving conduct by partners at firms including Clydes, Reed Smith and Ashursts.
Lawyers are also facing investigations over their conduct advising on, and handling investigations into, harassment claims. An employment law partner at Herbert Smith is being investigated for his allegedly aggressive and intimidating conduct towards a complainant; and a partner at Allen & Overy is being investigated for the alleged improper use of a non-disclosure agreement (one of several live investigations by the SRA into NDAs).
Following the rise of the #metoo movement, investigations of this nature are likely to continue to attract press coverage, especially as many of the investigations involve alleged sexual misconduct by partners at large multi-national firms who can earn £1M+.
The Code of Conduct
It’s worth reminding ourselves of the relevant Principles in the SRA’s Code of Conduct which require solicitors to:
- act with integrity;
- behave in a way that maintains the trust the public places in the profession;
- run their businesses in a way that encourages equality of opportunity and respect for diversity; and
- uphold the rule of law.
These are all relevant when looking at allegations of harassment.
How do we define ‘harassment’?
Under the Equality Act, harassment is defined as unwanted conduct related to a protected characteristic (such as age, race, gender, disability, religious belief or sexual orientation) which has the purpose or effect of violating someone’s dignity or creating a hostile, intimidating, degrading, humiliating or offensive environment.
This is a wide definition - Harassment can happen in a variety of ways. It may be verbal, physical, electronic or take other forms.
What are the potential issues for law firms?
There are plenty of potential issues. The SRA Code of Conduct requires firms and people to report serious misconduct by any person (or firm) promptly. The COLP is obliged to take all reasonable steps to ensure compliance. Most firms will have a disciplinary procedure to investigate and report upon complaints, which they must follow.
Harassment is not confined to events in the office – it may be at a social event outside the office. The victim may not complain. However, that is not relevant. The onus is not on the victim to report the harassment. There are reporting obligations on witnesses, lawyers, the COLP and the firm which, if breached, could have regulatory repercussions.
Law firms must be careful with NDAs. This applies whether they are resolving complaints against their firm or advising clients upon a harassment claim. NDAs are valid when used properly; but cannot be used to prevent misconduct being reported to the SRA, the police or another body.
Similarly, lawyers cannot threaten victims that, if they pursue a harassment claim, it will affect their professional credibility and be the end of their career. What were once seen as hard-nosed negotiating tactics may now be viewed as bullying and intimidating behaviour, tantamount to harassment.
Law firms need to be mindful of the separate obligation to report misconduct if it occurs. Whether or not to report can be a tricky issue.
Claims of harassment are unlikely to be covered under a professional indemnity policy because they will not usually arise from individuals acting as a solicitor. However, claims arising from the improper use of an NDA could well be covered if they involve advising a client; and different insurance policies may respond.
Know your obligations
Whilst the problem appears particularly acute in law firms, other professions are also being investigated and with politicians and regulators focused on the subject of harassment, it is likely to continue to make headlines.
So what should law firms do? It is important for all firms to have a disciplinary procedure policy, which they must follow. The provision of training to staff on issues such as equality and diversity is also recommended.
The investigations (whether complaints are upheld or not) will have a real impact upon a firm’s reputation and brand. It’s not just the big City firms who are affected. Therefore, all law firms must be mindful of their obligations, have policies in place to meet them and be mindful of their obligation to report serious misconduct to the SRA.
If you have any queries on this subject or would like more information on how Keoghs’ professional and financial risks team can assist, such as advice on the regulatory consequences of a breach, please contact Christopher Stanton