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The legal sector and #metoo

29 November 2017

Sexual harassment is clearly big news at the moment. Not, of course, because it is a new phenomenon, but because it seems that the allegations swirling around numerous big Hollywood names have opened the floodgates and made it OK to say #metoo.

At Lewis Silkin, we have definitely seen a surge in both complaints being raised and, even in the absence of complaints, employers taking proactive steps to demonstrate their commitment to achieving a workplace free from harassment. This is affecting all sectors, but the debate has taken on an extra layer of complexity in relation to the legal profession with the Law Society saying that all allegations of sexual harassment must be reported to the Solicitors Regulation Authority (“SRA”).

What has the Law Society said?

On 27 November 2017, the Law Society’s presidents issued a joint statement in which they state that “everyone has a duty to help end harassment of any kind.” They go on to say:

“Solicitors have professional and ethical obligations that mean anyone found guilty of harassment is likely to face disciplinary action by the regulator as well as any civil or criminal proceedings.

Working environments should be safe for all, with clear policies to prevent harassment as well as accessible, safe procedures to deal with any complaints. Robust measures to address alleged harassment should also include fair processes for investigation so that rights are protected in the process of seeking the truth.”

All well and good so far, not least because most reputable law firms have excellent policies in place and a respected and professional HR team ready to deal with any allegations that come to light. However, the Law Society also issued a factsheet on workplace sexual harassment which goes somewhat further. This makes clear that best practice should include:

  • the firm’s leadership visibly and openly setting out and communicating a zero-tolerance approach to bullying and harassment in the workplace;
  • core training for all staff and managers, with modules on equality & diversity, anti-discrimination legislation and guidance on the firm’s policies; and
  • establishing a group of trained staff as “champions”, who members of staff can approach with concerns.

Many firms will need to ask themselves whether their current practices go far enough, and whether the leadership team has visibly demonstrated sufficient commitment to this issue.

Professional misconduct

It is no surprise that the Law Society factsheet highlights the fact that an act of sexual harassment by a solicitor is likely to amount to an act of professional misconduct, in breach of the SRA principles. It also makes clear that this will be the case whether the harassment took place within or outside the solicitor’s practice. 

The aspect of the factsheet that has caused some degree of surprise and debate is the statement that: “allegations of sexual harassment made against solicitors and those working in legal practice must be reported to the Solicitors Regulatory Authority”.

This appears to go much further than the previously understood position. The SRA’s guidance on the responsibility of a firm’s Compliance Offer for Legal Practice (aka the “COLP”) is to keep a record of any SRA breaches, to be provided to the SRA on an annual basis, but the obligation to make a proactive report only applies to a “material breach”. 

While there is a strong argument to say that an act of sexual harassment would be a material breach that should be reported to the SRA, many would conclude that an allegation that has not yet been investigated should not, at that stage, trigger a report. Nonetheless, the Law Society’s position seems clear and unambiguous – an allegation is enough to require a report to be made, whether the allegation is against a solicitor or anyone else in the firm.

What impact will this have on the profession? Will this requirement to make a report mean that allegations of sexual harassment (and presumably other forms of harassment, such as relating to religion, disability or sexual orientation) have to be dealt with formally? Will there be no option to reach a settlement with the alleged victim without making a report to the SRA, even if this is what the individual wants? Will an alleged perpetrator who resigns before findings are made still need to be reported to the SRA?

On the flip side, however, might this make people even more nervous about raising a complaint? Knowing that you are potentially about to put your own career in jeopardy by sticking your head above the parapet can be daunting enough, but the idea that you may then open up an investigation that could end the perpetrator’s career – and even damage the firm you work for – would require incredible strength and trust in the process.

We do not yet know how the SRA will deal with reports of this nature. Will it wait for the outcome of an internal process before intervening, or will parallel processes be required? Will it permit anonymous reports pending the outcome of an internal investigation? We will have to wait and see. We have contacted the Law Society and the SRA to see if we can clarify these issues, and will provide any additional information if and when it becomes available.

How we can help 

If you would like to discuss how we can help with your firm’s response to this debate, or would like information about the services offered by our Investigations Team, or our diversity training modules, please get in touch with me or your usual Lewis Silkin contact.

 

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