These are the top 15 practical things that – in our experience – partners in law firms can do to protect themselves against allegations of sexual misconduct, and the internal and regulatory investigations, and potential harm to their reputation, career, family life, and more, that can result.
This follows the SRA’s recently published Guidance on its approach to sexual misconduct in law firms. There will no doubt be updated partner behavioural training across all firms over the coming months, but in the meantime we thought it would be helpful to provide some plain-speaking guidance to partners based on our own team’s frontline experience of advising and training law firms and partners in sexual misconduct investigations over many years.
- Alcohol – Just stay low: At any work-related event -whether it’s a client event, after-deal celebration, leaving drinks, Christmas Party or a similar work-related social event, severely limit your alcohol intake. You are one of the leaders in the room, with responsibility and a duty of care towards your colleagues and clients. If you are medically susceptible to alcohol in any way and cannot regulate your body’s response, stick completely to soft drinks. The SRA says that being drunk will never be a defence to an allegation of sexual misconduct, and that whilst it could be either an aggravating or a mitigating factor depending on the context, the circumstances in which it is likely to be considered a mitigating factor will be rare.
- Keep your hands to yourself: This even includes a friendly arm around the waist or the shoulder, or holding hands – just don’t do it. You just cannot be sure that it is welcome and is not perceived as sexually motivated. Even if the recipient doesn’t mind, onlookers might nevertheless find it offensive. Whilst the SRA state in the guidance that someone being overly friendly and putting an arm around someone’s waist may not be a serious enough case for them to take regulatory action, it is surely better to err on the side of caution.
- It’s not the 90s anymore: Personal comments about a colleague’s attractiveness can easily be misconstrued and be regarded as sexual harassment. Most of us like an appropriate compliment but avoid any comments that could be reasonably perceived by the recipient or an onlooker as being of a sexual nature or related to sex.
- Avoid the after-party if you can: It’s where all the bad stuff happens and the sexual misconduct allegations arise following a work-related social. And if you do end up there – whether it’s a night club, a late night dive, or karaoke bar* [*insert your own preferred late night venue here], definitely assume you’re still at a work event and that you still owe obligations towards your colleagues and clients. Limit your own alcohol consumption, keep an eye out for anyone in your potential care who might be overdoing it, and under no circumstances should you ply or supply colleagues or clients with excessive drink.
- Who’s going to drive you home? If a colleague or client becomes drunk and potentially vulnerable at an event, obviously make sure they get safely into a taxi home or to their hotel, but do not get in the taxi with them, and do not go with them to their home or hotel room; this is where some of the most serious alleged incidents occur. They often involve a complainant alleging that they did not having capacity to consent to any sexual activities that followed thereafter, resulting in the risk of potential sexual misconduct or rape allegations.
- What goes on in Vegas, never stays in Vegas: whether it’s an international conference, an overseas client trip, a team ski trip or something similar, unwanted sexual conduct towards colleagues or clients – unwanted physical contact, sexual comments, looks or late night sexting, will all follow you home and get you into trouble.
- WhatsAppropriate?: Late night WhatsApp messaging between drunk colleagues is one of the most common causes of sexual harassment complaints and often provides damning evidence of sexual misconduct. A combination of alcohol, lowered inhibitions, and misconstrued romantic intentions will frequently lead to inappropriate messaging and will get partners into trouble. Just don’t do it.
- They’re just not into you in that way: That eager junior colleague who works hard for you, smiles and laughs at your jokes, is not interested in you romantically, repeat, they are not into you – they just want you to give them great work and help them progress in their career; and they are perfectly entitled to that. You are in a position of power, don’t abuse it and don’t be confused by their friendliness and being eager to please you. The SRA’s guidance makes clear that cases of sexual misconduct where there is a power imbalance between the parties will be considered to be at the more serious end of the spectrum.
- Everybody (junior) knows about your romantic intrigues at work: If you have had sexual skirmishes with colleagues or clients in the past and you think no one knows, think again. The junior staff and PAs definitely know and a few of the partners may do too (though in reality they’re often the last to know). If someone does formally complain about your behaviour, your history of indiscretions at work will come back to haunt you. Time to clean up your act.
- Don’t date junior colleagues, repeat – do not date junior colleagues – and be very circumspect about dating peers too. Whilst the SRA state in the guidance that consensual sexual relationships between colleagues will not, without more, be investigated or sanctioned, embarking on a relationship should still be considered carefully, especially if there is any potential imbalance of power or the other person is within your sphere of influence in any way. Consider whether your firm has any policy on romantic relationships at work, including if there is any obligation on partners to notify HR of any relationship of any kind that develops with a colleague or client, that might create any kind of internal or external conflict of interest.
- Someone who is too drunk to stand or get themselves a taxi, can’t make sensible decisions: That includes that they probably can’t make sensible decisions about whether or not to engage in physical intimacy of any kind with you. They may well say afterwards that they did not have capacity to consent because they were too drunk; and what appeared to you to be consensual sex or intimacy, could the next day turn into allegations of rape or sexual assault. No matter how interested and attracted they may seem to be in you at the time, the best thing you can do for their safety and wellbeing will usually be to step away and simply ensure they get safely into a taxi and send them home. If you have any concerns about anything potentially inappropriate that may have occurred between you and the drunk colleague or client, consider making a detailed contemporaneous note of the incident, and report it to HR or senior management as soon as possible so it can be addressed as appropriately and sensitively as necessary in line with the firm’s internal processes.
- Breaking up is hard to do: If you are in a romantic relationship with a colleague that breaks down, there is high risk of the fallout spilling over into work, especially if it is acrimonious. This is another high-risk area, and you need to be very careful about respecting boundaries of the other person, not harassing, persistently trying to re-engage them in the relationship, not in any way to subject them to any sort of threatening or detrimental behaviour. If you are unsure about what to do when a romantic relationship with a colleague breaks down, consider speaking confidentially with HR or a member of senior management about how best to handle the situation to minimise the work, career impact and potential conflicts of interest, for you both, and also for the firm.
- Always speak up: Staying silent when you see sexual misconduct at work normalises that behaviour and likely breaches obligations owed to the affected staff – speak up, intervene safely where you can, and quickly report the incident internally so it can be investigated and addressed appropriately. The SRA is planning on introducing a rule into the relevant Codes of Conduct requiring both individuals and firms to challenge discriminatory and unfair behaviour. Whilst the rules will apply to all solicitors, partners who witness inappropriate conduct and fail to stamp it out are most likely to be subject to regulatory action.
- It’s all about you: That partner behavioural training is definitely aimed at you: partners often sit through sexual harassment training and think it is not about them; then within a few weeks or months they unwittingly engage in exactly the behaviour which the training was seeking to prevent. Let’s be clear, the training is definitely aimed at you, and if you think it isn’t, then it’s even more likely to be about you. Engage with the partner training, listen to the advice and follow it – someday it may save your job, your career and perhaps your home life and liberty. This stuff is real and you need to engage with it for your own self-preservation as well as the protection of you colleagues and clients.
- If you are the subject of an investigation into alleged sexual misconduct:
a. Take legal advice immediately which may, depending on the severity of the allegations, including partnership, discrimination, regulatory and criminal law advice.
b. Keep the investigation as confidential as possible and take care to specifically follow any instructions issued by the firm on how to conduct yourself in relation to the allegations and investigation.
c. Do not try to share or influence the investigation; do not contact or try to dissuade the complainant (or try to find out who they are if the complaint is made anonymously); do not try to influence witnesses. Don’t do any of this either directly, or – not uncommonly – indirectly through allies.
d. Ensure that you comply promptly with any self-reporting obligations to the SRA (for which you are likely to need regulatory advice on timing and content).e. Do speak with your GP or seek urgent specialist medical support, including from A&E, if you are feeling overwhelmed by the allegations against you and investigation into them.
Our Expertise and Next Steps
Our firm has extensive specialist experience in advising firms, partners and complainants on the discrimination, partnership and regulatory aspects of sexual misconduct allegations, and we also work very closely with leading criminal law specialists in this area depending on the severity of the allegations:
- We advise firms, accused partners and complainants on all aspects of sexual harassment investigation, grievance, disciplinary processes and on the content and timing of related regulatory reporting requirements.
- We have extensive experience in conducting investigations as the external, independent investigator.
- We advise on remedial action that firms may consider taking following the conclusion of internal investigations into allegations of sexual misconduct.
- We offer highly interactive UK and internationally delivered partner behavioural training on the partnership employment and regulatory aspects of sexual misconduct in professional services firms, with that training tailored to each firm’s own Members Agreement, policies and internal reporting procedures.
If you have any questions about sexual misconduct issues, investigations or bespoke partner training in law firms and other professional services firms, please contact our Managing Partner, Clare Murray, our specialist SRA Professional Discipline Partner, Andrew Pavlovic, and our Employment and Partnership law Partner and General Counsel, Beth Hale, who will be pleased to discuss this with you.