On 15 May 2019 the International Bar Association (IBA) published a report compiling the results of the largest ever international survey on bullying and sexual harassment in the legal profession to date.
The time for change is now by ensuring that affected individuals can speak up, confident that they will be protected, with the necessary support provided. It is also crucial that training on appropriate behaviours should be offered across teams, including at senior levels. This issue is not going to go away any time soon until this happens.
There were 6,980 respondents from 135 countries. The questionnaire was sent to law firms, in house counsel, barristers’ chambers, the judiciary and government legal departments. The report is interesting in that it focussed both on sexual harassment and also bullying as two distinct areas.
As the IBA report was global, a more generic, rather than country specific, definition was adopted of what behaviour might qualify as sexual harassment or bullying.
Sexual harassment was defined as typically involving unwanted sex-related behaviour. The report summarised that whilst there is no one legal definition, most do involve some reference to the “conduct being unwelcome or unwanted and which has the purpose or effect of being intimidating, hostile, degrading, humiliating or offensive”. It is also highlighted that the prevention of sexual harassment has become a prominent issue with legislative prohibitions around this conduct in a majority of jurisdictions worldwide.
The report found that “workplace bullying is typically understood as exposure to aggressive behaviour or incivility by supervisors, colleagues or third parties”.
Different to sexual harassment, many jurisdictions do not have a separate express legal prohibition on bullying and bullying often needs to be linked to related discriminatory or unlawful conduct to give rise to a claim.
The IBA’s report findings
The key findings of the report included the following:-
One in three female respondents and one in 14 male respondents stated they had been subjected to sexual harassment in the workplace with one in two female respondents and one in three male respondents having been affected by bullying in the workplace.
The report found that in 57% of bullying cases and in 75% of sexual harassment cases this is not reported. The reasons for this appear to be the status of the perpetrator in the organisation, the fear of repercussions, and the conduct or incident being widespread in the organisation.
A further finding of the report is that policies and training overall are not have the desired effect and people working in organisations with policies and training overall are just as likely to be bullied or sexually harassed as workplace which do not have policies or training.
Of the respondents who state they have experienced bullying, 65% leave their workplace. Of those who experienced sexual harassment, 37% leave their workplace.
The Key Question for Firms is what Best Practice Steps can be put in place to mitigate these workplace concerns and risks raised by the IBA Report?
There are two key issues to consider here:
- what can and should firms do to manage the risk of potential future complaints of sexual harassment/misconduct and bullying
- what is the best practice approach to take when facing an allegation of sexual misconduct or bullying
- Managing the risk going forward
It is good practice for a firm to have in place a comprehensive set of policies which set out the behaviours expected of partners. In a significant number of cases alcohol consumption at work related events can play a role in sexual misconduct cases and this area of risk should be addressed by firms.
Any policies will not be effective without regular training. Awareness training is essential as it helps partners understand the expected standards of behaviour, the concepts of discrimination, harassment and victimisation, and the sanctions which will be imposed in case of any breaches.
A key senior person should be appointed to whom any concerns regarding sexual harassment can be reported on a confidential basis. It is vital that those who experience harassment know that they are protected and that there are clear steps which they can take to raise any concerns and that these will then be properly investigated.
If employees feel they are able to raise concerns regarding potentially inappropriate behaviour, this may go some way towards providing the firm with an opportunity to address and manage any possible risks, both to its staff and itself, at an early stage.
- Facing an allegation of sexual misconduct or bullying
It is imperative to conduct a confidential, full and prompt investigation once any allegation of sexual misconduct or bullying is raised to allow a full assessment of the facts.
The allegations should be fully and fairly investigated, taking into account confidentiality and data privacy of those involved, as far as possible. On occasion a complainant will be seeking anonymity and in practice there will be some limitations to this. Thought will also have to be given as to whether and when to report the matter to the regulator.
The alleged victim and alleged perpetrator should be offered psychological support. A special leave of absence should be considered as an option for the individuals concerned at an early stage. In some instances, the worst perpetrators can be successful and profitable for the business and consider themselves untouchable as a result and this will have to be carefully managed.
The firm should consider taking public relations advice to manage any potential publicity concerns.
When assessing which approach to take, thought will have to be given to any regulatory and possible criminal aspects, the impact on the individual who has been the subject of any sexual harassment or misconduct, and the firm’s values, public face and PR implications.
Whilst an investigation process can be time-consuming and costly, one of the positive outcomes of a good internal investigation can be an opportunity for an employer to manage the associated risks and ascertain system or management failures which may have contributed to the original bullying or sexual harassment. The process provides an opportunity to adapt internal policies and systems and offer bespoke training to try to reduce the risk of similar behaviour in future.
The IBA Report Recommendations
The report finds that change is needed and provides ten recommendations which include the following
- Raise awareness
- Revise and implement policies and standards
- Introduce regular, customised training
- Increase dialogue and best-practice sharing
- Take ownership
- Gather data and improve transparency
- Explore flexible reporting models
- Engage with younger members of the profession
- Appreciate the wider context
- Maintain momentum
The report acknowledges that change will not happen overnight and that some of the underlying issues reflect wider issues in society which need to be resolved rather than being unique to the legal world.
However, the report found that there are “compelling moral, ethical and commercial imperatives for the profession to act urgently”. The report also found that at an organisational level the consequences of sexual harassment can include higher employee turnover, increased recruitment, training and development costs and possible litigation.
What the key issues are for firms and lawyers in dealing with bullying and sexual harassment
The executive summary of the report starts by saying “the legal profession has a problem” and the report finds that the issues are ongoing with a “considerable proportion of cases occurring within the past 12 months”. The report also finds that a large proportion of both sexual harassment and bullying cases are not reported and the reasons for this include a fear of possible repercussions and the status or profile of the perpetrator in the firm organisation.
Unique to the Legal Profession?
The report recognises that the legal profession is by no means alone in facing these issues and highlights that “a 2018 report of the European Parliament found that, at any one time, five to ten per cent of the European workforce is subjected to bullying at work.
A similar report has to date not been compiled for the other industries and sectors although this is of course not immune to the same issued as evidenced by the headlines in recent months.
The #MeToo movement has changed public perception of what is acceptable and respectful behaviour between colleagues and this has shifted attitudes fundamentally and that is to be welcomed. What has also changed is a feeling that people who have been at the receiving end of sexual harassment are now able to speak up.
If proper processes are put in place and employees feel they are able to raise concerns regarding inappropriate behaviour, this may go some way towards providing the firm with an opportunity to address and manage any possible risks, both to its staff and itself, at an early stage.
By Bettina Bender, partner at Winckworth Sherwood and part of the IBA Working Group