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Emma Walker

Associate Solicitor, Leigh Day & Co

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An obligation to report can arise irrespective of whether the victim has made a complaint to the firm or the firm has had an opportunity to investigate

An Ethical Romance

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An Ethical Romance

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Emma Walker examines the ethics of workplace romantic relationships and the profession’s reporting obligations in the context of sexual harassment

As reports of sexual harassment in the profession have gone public over the last year or so, so too have accounts of how practitioners and firms have dealt with such reports – and how they’re dealing with the wider issue of workplace relations. The recent rise in reporting has given some solicitors pause for thought as to whether romantic relationships between colleagues are still permitted or whether they will soon be outlawed by employers or the regulator. Forming a romantic attachment with a colleague undoubtedly presents a number of important issues to consider before making a first move. But by engaging an ethical approach, taking time to reflect and, where necessary, debating what’s regarded as appropriate and inappropriate behaviour, it is possible to steer a proper course. At a minimum, individuals, firms and the Solicitors Regulation Authority (SRA) all have parts to play in helping shape this narrative. In a profession where the probity of its members is so important to the work, clients and reputations, it’s hardly surprising there is an expectation that practitioners must be at the forefront of compliance with equality laws. So what constitutes sexual harassment and how should individuals respond if they witness it; and what obligations are on firms to address reports of sexual harassment? What approach is the SRA taking to reports of sexual misconduct? And where there is no question of sexual harassment, what ethical considerations should be balanced before embarking on a romantic relationship with a colleague?

The Equality Act 2010 defines harassment as unwanted conduct relating to a protected characteristic, eg disability, race, religion or sexual orientation, that is either meant to, or has the effect of, violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. When determining whether an act constitutes harassment, factors to be taken into account are the perception of the person against whom the act has been perpetrated; the other circumstances in the case; and whether it is reasonable for the behaviour to have that effect. Sexual harassment can take the form of written or spoken comments of a sexual nature, such as remarks about someone’s appearance or their sex life or unwanted sexual advances and sexual assault.

NEW REPORTING RULES

Sexual harassment does not have to take place in the office to be caught by the professional rules. There are regulatory implications for the perpetrator and, potentially, for anyone witnessing the misconduct. New reporting rules were introduced on 25 November 2019 alongside a host of other changes to the regulatory regime. One of the updated requirements is that individual solicitors (paragraph 7.7 of the code for individuals) and firms (paragraph 3.9 of the code for firms) have a duty to report promptly facts or matters they reasonably believe are capable of amounting to a serious breach of the regulatory arrangements by a regulated person. Individuals can discharge their duty by reporting concerns to their firm’s compliance officer for legal practice (COLP).

However, where the individual believes a report should be made to the SRA and is not satisfied the COLP will form the same view, the individual is expected to make the report themselves. The SRA has made clear in its enforcement strategy that it takes allegations of sexual misconduct seriously. Where individuals witness – and firms become aware – that sexual misconduct has taken place, they need to consider the reporting rules. An obligation to report can arise irrespective of whether the victim has made a complaint to the firm or the firm has had an opportunity to investigate. In conducting an investigation, firms will need to act promptly and carry out a fair and balanced review of what happened. A failure to investigate (properly or at all) could itself have regulatory repercussions. Also, where the person subject to the harassment is treated badly or less favourably because of their reaction to the harassment, that treatment could also constitute harassment – and there could also be a claim under the Equality Act. Solicitors need to be careful about the use of non-disclosure agreements (NDAs) when dealing with internal matters and advising their own clients. Paragraph 7.5 of the code for individuals says solicitors must not prevent anyone providing information to the SRA or any other body exercising a regulatory, supervisory, investigatory or prosecutorial function in the public interest. An NDA being used in the way paragraph 7.5 envisages would, self-evidently, be caught by the rule. The SRA’s warning notice on NDA has been updated to reflect the SRA’s Standards and Regulations (STARs); and the Law Society has published a practice note to help practitioners understand their professional obligations.

THE REGULATOR’S APPROACH

The SRA’s chief executive, Paul Philip, has acknowledged the view of some that the regulator shouldn’t involve itself in reports of sexual misconduct in the profession. Speaking at a conference in 2019, he explained that where the SRA has stepped in, “for the most part we are talking about breaches of our code, either through an abuse of authority or a complete lack of integrity… We will always take action where that is the case. Given the changes in societal expectations we will see more of that in the coming years”. He added: “People say it is a matter for the criminal courts [but] that doesn’t mean it is not a regulatory matter if it brings the profession into disrepute.” This gives an indication of the SRA’s thinking about the professional rules that are offended by sexual misconduct. The references to integrity and societal expectations point to the principles underpinning the rules governing the profession. The principles have been revised, reduced and renumbered as part of the STARs. The most significant changes are, arguably, that in a bid to clarify the concepts and expectations about behaviour, honesty now appears as a standalone principle (principle 4) and is in addition to integrity (principle 5). Principle 2 requires regulated individuals to act “in a way that upholds public trust and confidence in the solicitors’ profession and in legal services provided by authorised persons”.

FORMING RELATIONSHIPS

Even where sexual harassment isn’t an issue, there are ethical considerations individuals should address before forming a relationship with a colleague. Firms need also to be alive to these matters in order to be effective and responsible managers. Where there’s an imbalance of power between individuals, there’s a need to appreciate the implications for both parties, their team mates and the employer. Where colleagues are in the same reporting line there is a risk (real or perceived) of unfair advantage that can in turn have impact team morale and productivity. One or both parties may be privy to information that is sensitive, subject to an information barrier or otherwise privileged or confidential; and measures may need to be revised to prevent disclosure of information when necessary. The working relationship may become strained if the romantic relationship ends; and it cannot be assumed that a move to another team or department will produce the same career prospects as if both parties stayed in their original roles. Some large UK firms have asked staff to sign contracts requiring them to disclose any romantic relationship with a colleague. Other firms are said to have introduced policies only requiring senior staff to make a report. The aim of these measures is to guard against imbalanced workplace relationships and avoid professional conflicts of interest, but their use can be problematic. Can contracts and policies be ethical when they oblige employees to disclose personal information such as their sexual orientation? What is the precise trigger for reporting a relationship? If an employee fails to report, will they be regarded as dishonest or lacking in integrity? Where these policies cannot be applied consistently, does that undermine their very existence? With firms adopting an approach which could be considered authoritarian, what impact does that have on individual agency in terms of ethical decision-making and personal accountability? Alternatively, if firms distinguish sexual harassment from workplace relations and communicate a zero tolerance approach to the former; and set out frameworks for dealing with scenarios to their staff, they equip employees with the tools and vocabulary they need to conduct themselves ethically.

Firms and individuals should not shy away from dialogue that has the potential to build environments where all staff can feel valued and can flourish.