On Thursday 1 September, the SRA published its long awaited guidance on sexual misconduct. The guidance is discussed by Managing Partner, Clare Murray and, Regulatory and Professional Discipline Partner, Andrew Pavlovic, in this video.
The guidance sets out the SRA’s revised approach to sexual misconduct cases following the High Court’s decision in Beckwith at the end of 2020, where the Court warned the SRA against being “dogmatic” and holding out solicitors as “paragons of virtue”, making clear that the SRA should only be investigating and prosecuting cases where the conduct in question realistically touches on the standing of the legal profession.
The guidance sets out 3 main types of cases where the SRA will take action:
- Misconduct taking place in the office environment – such cases will usually involve a senior/junior dynamic and consist of, for example (but not limited to), suggestive/sexual remarks, inappropriate touching and derogatory remarks;
- Criminal convictions/criminal conduct – where a solicitor is convicted of a sexual offence, then the SRA will take action, even where the conduct giving rise to the offence was unconnected to the solicitor’s practice. This action is taken on the basis that a solicitor committing a criminal offence causes damage to the reputation of solicitors generally. The guidance indicates that the SRA may choose to investigate a matter even where there has been a criminal trial resulting in an acquittal, on the basis that “professional misconduct is a wider concept than criminal law”. The SRA also note that in serious cases of sexual touching, the SRA may take action even where there is no connection to practice and no criminal complaint or proceedings.
- Conduct which is non-criminal and takes place outside the confines of the office – this category of the cases is the most difficult for the SRA, and where the Beckwith dicta applies. In order for a matter to be in the SRA’s jurisdiction, the conduct must be sufficiently “proximate” to a solicitor’s practice, and the guidance sets out examples of where proximity may be established. These may include encounters taking place outside office hours but on office premises, or encounters which take place in a “work context”, for example at networking or social events. It is common for individuals to then move on to a pub or a private setting following such events, and whilst the SRA acknowledge that the proximity to practice is “weakened” at that point, it may still be sufficiently proximate if the working relationship provides the context in which the sexual misconduct occurs.
The guidance also sets out how the SRA assesses the seriousness of the alleged misconduct. Following the Beckwith decision any case which involves an abuse of position or seniority will be considered serious, as will any case featuring other aggravating factors such as accompanying attempts to harass or intimidate the alleged victim into not reporting the conduct, and conduct which is pre-meditated, unwanted and/or is repeated over a period of time.
Consensual acts are also considered in the guidance. Whilst the SRA indicate that consensual sexual relationships between colleagues will not, without more, be investigated or sanctioned, this is still an area where considerable caution is required. There have been instances where consensual relationships have ended on bad terms, with (for example) the more senior person/partner then threatening consequences against the junior party for ending the relationship. Furthermore assessing whether consent is meaningful/fully informed may be difficult where there is an imbalance of power in the relationship, the victim of the misconduct is vulnerable or was intoxicated at the time of the alleged misconduct.
Alcohol very often plays a role in sexual misconduct, particularly misconduct taking place at or after work/social functions. The guidance makes clear that alcohol consumption will never be a defence to an allegation of sexual misconduct, but it may be either an aggravating or a mitigating factor which is relevant to the sanction which the SRA/Tribunal applies. Generally being excessively drunk will be an aggravating feature, as the SRA are likely to be considered that someone who drinks to excess and commits acts of misconduct is a regulatory risk, however there may be exceptional cases where it is a mitigating factor (for example if alcohol was mixed with medication or the consumption of alcohol was connected to an underlying medical condition).
What firms need to do now
The guidance makes reference to the SRA’s guidance on workplace environments, published in February this year, which requires firms to take a zero tolerance approach to sexual misconduct (and other forms of harassment) and cultivate a “speak up” culture in which individuals are able to speak up if they are the victims of such conduct. It follows that sexual misconduct cases can have regulatory implications and consequences for firms too. Firms should accordingly be doing the following:
- Ensuring that partners and other members of the firm are aware of this guidance;
- Reviewing their sexual harassment and misconduct policies and considering whether any changes need to be made to reflect the guidance;
- Considering whether targeted training/updated training is required on this guidance and on sexual misconduct matters more generally.
We have extensive experience in advising firms, partners and complainants on the employment, partnership and professional discipline aspects of sexual harassment matters; we also act as independent investigators in sexual harassment investigations and provide in person training to partners and teams on sexual harassment and related behaviour issues. Our Managing Partner, Clare Murray was appointed as the Specialist Adviser to the House of Commons Women & Equalities Committee in their 2018 Public Inquiry into Sexual Harassment in the Workplace.
Andrew Pavlovic is recognised by Legal 500 UK 2021 & 2022 as a “Rising Star” in the field of professional discipline, and has substantial regulatory experience, having previously acted for the Solicitors Regulation Authority over several years in complex disciplinary proceedings and subsequent appeals.
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