Recently, the Solicitors Regulation Authority (SRA) issued new detailed guidance for how regulated firms must handle different situations related to sexual misconduct. The guidance comes after years of increasing complaints of misconduct within the sector.
The guidance is intended to clarify the SRA’s expectations for what is acceptable workplace behaviour, the way firms handle reports of sexual misconduct, and when regulatory action is needed. It lays out a model for understanding the way the regulator thinks about which types of actions require intervention.
What does the SRA’s guidance mean for lawyers?
Individuals are expected to ensure that their conduct preserves and justifies clients’ and colleagues’ trust in them, as well as the public’s trust in the profession. That trust would be undermined if a person exploits their professional position to pursue an improper sexual encounter with a client, a colleague or anyone else.
Of particular concern are areas where the line between an individual’s private and professional life can get blurred, making it difficult to make a judgement about whether any particular act constitutes a regulatory matter. An off-site company social event, where coworkers mingle in a context that is removed from the office, is just one example. Such events are generally still considered to be within the boundaries of the workplace, barring other factors.
Other borderline cases might include the improper use of social media, or a consensual workplace relationship that subsequently becomes non-consensual. In each of these cases, judgements must be made as to whether regulatory intervention is required.
Factors that may be considered when evaluating a case for regulatory intervention include:
- Proximity to the practice
- The seriousness of the conduct
- The criminality of the conduct
- Levels of consent
- The victim’s vulnerability, particularly with regard to a senior staff member
- Intoxication (depending on the context, intoxication could aggravate or mitigate the behaviour, but it is never a defence to an allegation).
As a rule, inappropriate social media posts or emails can amount to sexual misconduct and will be treated as seriously as those committed offline.
Zero tolerance of sexual misconduct
The SRA expects firms to foster a culture of zero tolerance of sexual misconduct, where staff feel that they can speak up freely and report matters. It requires that any allegations of sexual harassment are investigated promptly, sensitively and appropriately, and in compliance with the firm’s legal and regulatory obligations. Any matter which they believe may amount to a serious breach of requirements must be reported to the SRA immediately.
Notably, the SRA reiterated its position that non-disclosure agreements (NDAs) cannot be used as a way of preventing an employee from reporting misconduct or making a protected disclosure under whistleblowing legislation.
The SRA’s guidance reflects a growing trend among regulators to clamp down on sexual misconduct as part of its code of conduct. The Financial Conduct Authority (FCA) has also recently taken a stronger stance on sexual misconduct.
You can read the full guidance here.
VinciWorks’ sexual misconduct training for law firms
Our soon-to-be-released course covers the SRA’s guidance on sexual misconduct, highlighting what the guidance means for firms and staff, what types of activity require regulatory action, the part you can play in providing a safe workplace, and more. The course includes video scenarios illustrating borderline cases.
If you would like to know more about the course, enter your details in the short form below and someone will be in touch.