New SRA sexual misconduct guidance

In March 2018, the Solicitors Regulation Authority (SRA) published its warning notice on the use of non-disclosure agreements, which applied to: “any form of agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential.” Since then, there has been a surge in complaints relating to sexual misconduct; from 30 in the preceding five years to 251, with 117 ongoing investigations.

There have also been a number of high-profile cases involving alleged sexual misconduct, most notably Ryan Beckwith v Solicitors Regulation Authority [2020] EWHC 3231 where the court warned the SRA against being “dogmatic without knowing it” and concluded that “popular outcry is not proof that a particular set of events gives rise to any matter falling within a regulator’s remit.”

In the wake of all this, the SRA issued a new guidance on Sexual Misconduct on 1 September 2022.

Scope of the guidance

Within the guidance, the SRA sets out its approach to allegations of sexual misconduct by solicitors and provides an understanding of:

• what behaviours are unacceptable and when they might become a regulatory matter; and
• the boundary between a solicitor’s behaviour in their private and professional life, where they might overlap – and why the distinction is important.

The guidance sets out three main areas where the SRA will take regulatory action:

1. sexual misconduct within the office;
2. sexual misconduct outside the office; and
3. where a solicitor is convicted of a sexual offence or has been the subject of a criminal investigation leading to an acquittal, even if within the confines of their private life, because such conduct: “is so serious that it is relevant to professional standing, as it would diminish public confidence in the profession, as well as having a bearing on the integrity of the individual concerned.”

Sexual misconduct

The guidance defines ‘sexual misconduct’ as: “conduct related to sexual behaviour which raises a regulatory issue”. It states further that “a person must not abuse their professional position to initiate or pursue an improper sexual or emotional relationship or encounter with a client, a colleague or anyone else.” 

Examples of sexual misconduct are set out within the guidance, based on actual complaints received by the SRA:

1. unwanted sexual attention, including:

• sexualised comments;
• overtly sexually specific remarks about sexual activity or intimate parts of the body;
• sexually offensive, derogatory or explicit comments about a complainant made to (or overheard by or copied to) third parties; and
• unwarranted and unwanted touching. 

2. a consensual relationship that becomes non-consensual whereby an individual continues with sexual attention or seeks to revive the relationship. This may involve bullying and harassment, intimidation or even punishment; and

3. use of social media to sexually harass, intimidate or pressurise a colleague or make targeted sexualised comments about a colleague’s physical appearance.

Whilst the guidance does not apply to consensual sexual relationships between colleagues, (except where they fall within the remit of paragraph 2 above), it recognises: “consent is very complex and can be hard to determine. It can be affected by such factors as relative seniority/inferiority, vulnerability, intimidation, and intoxication”. 

The circumstances of each case, including any aggravating and mitigating factors as specified in the guidance, will be taken into account when assessing the seriousness of the conduct.

Misconduct outside of the office

Cases falling within this category are likely to present a challenge and will need careful scrutiny. As acknowledged within the guidance: “the line between an individual's private and professional life can begin to get blurred, making judgments about whether any conduct constitutes a regulatory matter more difficult”.

The test to be applied in such cases is that of “proximity to practice”; in other words, misconduct outside the office will only fall within the SRA’s jurisdiction if the conduct was sufficiently proximate to the solicitor’s practice. The guidance sets out the relevant factors which the SRA will take into consideration to establish proximity. These include whether the conduct:

• took place on practice premises;
• took place at official or informal firm events at a firm’s premises or in other locations, such as a firm seminar, a firm Christmas party, after-work drinks, or a firm trip;
• involved a colleague or a client or any other professional acquaintance;
• stemmed from a professional origin, but was not a firm sponsored event, such as a networking or training event; and
• took place after a firm event or event linked to the profession but at a separate location or venue, such as informal after-event drinks at a pub, or in someone’s home.

It is accepted that proximity to practice “might be lost after a certain point” where the event begins at one location and further locations are visited subsequently. Notwithstanding this, the guidance warns:“some complaints are so serious that even if they arise from a private setting we will consider bringing proceedings.”

What employers need to know

The Workplace environment: risks of failing to protect and support colleagues guidance, published by the SRA in February this year, sets out general expectations for firms in ensuring the wellbeing of their staff. In cases of sexual misconduct, the SRA requires firms to:

• foster a culture of zero tolerance;
• ensure staff feel they can speak up freely and report matters;
• have robust procedures and policies in place to properly manage and investigate complaints of sexual misconduct;
• investigate allegations sensitively and appropriately, in compliance with their legal and regulatory obligations; and
• report matters promptly to the SRA.

To this end, not only is it important for employers to ensure their staff members are aware of this guidance, but also to consider if their policies need to be updated and whether any training should be undertaken. There is a risk employers could face a civil action for the wrongdoing of an employee, as explained below.

What employees need to know

Though the guidance provides much needed clarity on which behaviours should be reported and will prompt the SRA’s powers of investigation, employees need to be aware of their rights beyond this.

The guidance states the SRA will consider whether to report a complaint of sexual misconduct to the police. However, non-consensual sexual conduct is a crime and should be reported to the police, irrespective of the SRA’s decision on this.

Subject to the outcome of the police and/or SRA investigation, an employee may be entitled to pursue a civil claim against the perpetrator directly as well as their employer. Under the legal principle of vicarious liability, employers can be liable for the wrongful act of their employees provided:

(i) the relationship between the employer and employee is capable of giving rise to vicarious liability; and

(ii) there is a sufficiently close connection between the wrongdoing and the employment so it would be fair and just to hold the employer vicariously liable for that wrongdoing.

This issue arose in Bellman v Northampton Recruitment Limited [2018] EWCA Civ 2214, where the managing director of the company assaulted an employee, at ‘impromptu drinks’ at a hotel following the office Christmas party. The Court of Appeal held that there was a sufficiently close connection between the managing director’s role and the assault on the employee to hold the company vicariously liable for his actions.

There is a strict limitation period for pursuing civil claims for sexual assaults; proceedings must be issued against the defendant(s) within three years of the assault. In very exceptional circumstances, the courts can waive the time limit where there are good reasons for doing this and a fair trial is still possible. However, the longer the time period the more difficult it will be to convince the court to apply this discretion. Therefore, any employee considering a civil claim must seek legal advice promptly.

A timely reminder

Re-emerging from remote working, many of us are relishing the opportunities to be in the office with colleagues, hold face to face meetings with clients and other professionals and participate in training and networking events.

As we head into the festive season, there may be frequent socialising outside of work, with team lunches, team bonding activities – and, of course, the office Christmas party, where alcohol is a prominent feature. The SRA’s guidance makes it clear that being intoxicated is never a defence to an allegation – and may in fact be an aggravating factor which affects the seriousness of the misconduct.

The guidance serves as a timely reminder, and caution, that sexual misconduct within the workplace will have serious consequences – and external formal or social events are likely to be considered an extension of the workplace, making both employees and employers responsible for any improper behaviour.

Zahra Awaiz-Bilal is a senior associate at Bolt Burdon Kemp LLP: boltburdonkemp.co.uk