This time last year Omicron cases were on the rise, leading to the cancellation of countless Christmas celebrations. Many law firms are now due to host 'in person' Christmas parties for the first time in almost three years. Although the spirits of party-starved lawyers are bound to be high, inhibitions may not be. Ahead of these festivities, it's therefore important for firms to be clear about appropriate workplace behaviour and the potential consequences of sexual misconduct.

Reports of sexual misconduct in the legal sector have seen a year-on-year rise since 2018 when the Solicitors Regulation Authority (SRA) issued a warning notice about the use of non-disclosure agreements. The SRA confirms that since then, there have been 251 reports of alleged sexual misconduct, compared to just 30 in the preceding five years. In September 2022 there were 117 ongoing investigations. Given these deeply concerning statistics, the SRA recently published guidance on sexual misconduct. This sets out the SRA's approach to these kinds of allegations, what behaviours are unacceptable and when the regulator might get involved.

SRA guidance on sexual misconduct

The Guidance sets out clear expectations: firms must foster a culture of zero tolerance of sexual misconduct, where staff feel that they can speak up freely and report matters to their firm and regulator. The Guidance also makes clear how sexual misconduct can violate core principles that underpin ethical values of regulated professionals: acting with integrity; in a way that upholds public trust and confidence in the profession; and in a way that encourages equality, diversity and inclusion.

Where sexual misconduct has been alleged, the Guidance highlights what factors would indicate when regulatory action might be taken:

  • Proximity to practice - the closer any behaviour is to an individual's professional practice the more likely the conduct may impact on or call into question the integrity of the individual or wider trust in the profession. Importantly, this will also be the case if misconduct arose at a social event such as a firm Christmas party. As these are effectively an extension of the workplace, it would be viewed from a regulatory perspective as arising from a practice context.
  • Seriousness of the conduct – sexually motivated conduct would elevate the seriousness of a misconduct allegation. Such conduct could include unwanted comments or touching. The Guidance highlights other aggravating factors, such as, bullying or harassment, intentionally plying someone with alcohol and any manipulation or coercion, particularly across levels of seniority.
  • Criminality – while this would be a relevant factor, it's not a pre-requisite for the SRA to make a finding of sexual misconduct.
  • Consent and vulnerability – both of these factors would be relevant for the SRA to gain a holistic view of any alleged misconduct.

A legal duty to prevent sexual harassment at work

In addition to the increased scrutiny placed on firms by the SRA, the UK Government has given its support to a Private Member's Bill which would introduce significant new obligations on the prevention of sexual harassment at work. Some 5 years after #MeToo gained momentum, the Worker Protection (Amendment of Equality Act 2010) Bill is now making significant progress through the legislative process and looks set to reshape party planning for future festive seasons. See more about this here.

The Bill would amend the Equality Act by introducing a new positive duty on employers to 'take all reasonable steps' to prevent workplace sexual harassment. An employment tribunal could apply an uplift of up to 25% on any compensation awarded for sexual harassment if the tribunal considers that the duty to take reasonable steps to prevent harassment has also been breached. This would offer more protection from workplace sexual harassment, placing a renewed focus on prevention.

In addition, the Bill also makes employers potentially liable for the harassment of staff by any third parties, reintroducing and expanding protections repealed in 2013. This would mean that firms will not escape liability for harassment that might occur at the hands of clients or other third parties.

Shifting focus to prevention

The Bill itself does not detail how law firms, or indeed any employer, would demonstrate compliance with the new preventative duty. This is likely to be set out in an upcoming statutory Code of Practice on harassment. That said, EHRC guidance published in January 2020 certainly provides useful pointers as to what employers may need to do. This suggests that in future years, undertaking a Christmas party harassment risk assessment, and ensuring that a confidential reporting system is in place, will be an essential part of festive party planning.

But back to the ghosts of Christmas parties present. The current legal position is that to avoid vicarious liability for harassment committed by a worker an employer must show that it took all reasonable steps to prevent the harassment. Crucially, those steps must be taken before the harassment happened. This is not simply a tick-box exercise; we know that when considering this issue, tribunals place importance on the quality of a firm's anti-harassment training. An organisation was recently unable to defend a harassment claim because it's training was considered "stale".

It's therefore crucial that anti-harassment training is relevant, engaging and delivered regularly to help colleagues understand how they can do their part towards building lasting culture change. Importantly, training should provide guidance on how to support colleagues experiencing harassment and how to hold any such conversations sensitively and compassionately.

Lewis Silkin's dedicated training team provide in person, online and eLearning training solutions that can be tailored to your firm's requirements.

How to foster a zero-tolerance culture

It's clear from these recent and potential changes to rules and guidance around sexual harassment that a zero-tolerance culture should be the norm. How can this be achieved?

  • Prevention is always better than cure – Ensure that all staff are well trained on the new SRA sexual misconduct guidance. Staff should also be aware of the types of conduct that can amount to harassment and understand that the Christmas party is an extension of the workplace.
  • Increased responsibility for managers – Senior colleagues are the custodians of your workplace culture. Ensure that managers are aware of their responsibilities and why role modelling appropriate workplace behaviour is crucial.
  • Speak up – Victims or bystanders of inappropriate workplace conduct should feel comfortable speaking up. Staff should be trained on any speak up or whistleblowing processes, including highlighting principles of non-retaliation and protection from victimisation.
  • Policies and processes – Policies should be comprehensive and regularly updated. Firms will also be expected to communicate and regularly train staff on anti-harassment and respect at work policies.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.