The #MeToo movement shone a spotlight on harassment across all sectors, and the legal profession is by no means an exception. #MeToo, which brought rolling coverage of headline-grabbing cases, led to a general uptick in disclosures and complaints (quite often historic ones) about workplace sexual misconduct. In this article we explore the risk factors, the benefits of taking a preventative approach to harassment as well as other considerations when handling cases in law firms and at the Bar. How far have things come since 2017? The landscape has changed considerably in a short space of time, though some issues still remain.
Sexual harassment: risk factors in the profession
In pre-pandemic days, our profession – in part at least – operated in ways which could prove fertile ground for a culture open to harassment: late nights, long hours and lone working; deal culture; parties, entertainment and alcohol; hierarchical structures and power differentials; ambition and authority. All these factors historically led to an environment where sexual harassment could occur, and indeed, become normalised.
The pandemic has brought new challenges for everyone in ensuring safe workplaces. Whilst the enforced migration to virtual (and now, hybrid) working has brought many benefits, sexual harassment too moved online and for those back in the physical office, fewer colleagues around means less staff to intervene when and if needed.
Taking a preventative approach
Adopting a preventative approach is key. That has to be a priority, not least given recent media coverage of cases, disciplinary action by our regulators, reputational concerns and the damage to individuals who have suffered from harassment. Implementing steps to prevent sexual harassment does not require an overly legalistic approach and both law firms and the Bar will find practical guidance both in the EHRC technical guidance (see here) and a recent UN report on ending harassment and changing culture (see here).
The UN guidance in particular talks about the importance of high-quality, engaging and bespoke training, recommending an audit/culture check which we know many clients have done and have found useful in identifying issues. It also suggests training some individuals in appropriate ‘bystander interventions’ has proven effective in the military and university campuses, for example.
The consequences and risks of failing to take a preventative approach should not be underestimated.
For example, in a recent Employment Appeals Tribunal (EAT) case (Allay (UK) Limited v Gehlen), the EAT held that an employer could not rely on the “reasonable steps defence” to a claim (s 109 Equality Act 2010) because their training (on equality and diversity) had gone “stale” following a two-year period in which there was no refresher training provided.
Furthermore, where employers do not seek to foster a “speak up” culture (ie: where everyone understands the expected standards of conduct and individuals are confident to report issues), then cases will go undetected. In the long run this might mean:
- Issues not being reported for investigation;
- Lower-level sexual harassment potentially escalating to more serious or violent forms;
- complaints, grievances and Employment Tribunal cases;
- damage to reputation and press interest;
- the loss of clients or commercial partners;
- staff departures;
In July 2021, the Government published the outcome of a consultation into workplace sexual harassment that began in 2019. The consultation recommended a new legal duty on employers to “prevent” sexual harassment and further guidance on this new duty is awaited. It remains to be seen whether this will (or can) be a requirement with any real teeth, but the principle reflects the direction of travel in this respect.
Specific considerations in relation to case handling
Sexual harassment cases can throw up a plethora of practical and legal issues.
First, due to the often sensitive nature of these disclosures, victims or witnesses may be reluctant to come forward. This can lead to delayed reports; years can go by before someone might make a disclosure. It is well known that a range of factors can contribute to delayed disclosures including fear of impact on careers, concerns about reputation and fear of not being believed. However, even historical cases should be investigated and proper process followed, including supporting those involved; conducting risk assessments where necessary to prevent ongoing harassment and taking mitigating steps in response.
Secondly, in serious cases where a sexual assault may have occurred, the disclosures may well not always be made in a linear, logical fashion, which lawyers as managers can find particularly difficult and can lead to early doubts about the credibility of the allegations. However, disclosures should always be taken seriously from the outset. There is also an important distinction between receiving a disclosure of harassment for the first time versus being the impartial investigator appointed to establish the facts of the case.
In the UN report, a “victim-centred approach” is recommended at every stage in the process. This means ensuring that complainants are given as much control as possible, that they are advised about issues such as privacy and confidentiality as soon as possible, and taking a non-judgemental approach. They should be kept informed of any actions (preferably before the actions are taken), ensuring that there is timeliness in communications and investigations, that victims are aware of specialist support (and likewise support plans should also be in place for those accused) and finally assuming neither guilt or innocence but starting from the possibility that what the victim is reporting may be true and carrying out a robust investigation.
Organisations should always follow their policies and procedures in the case of any complaint or allegation, as well as EHRC and ACAS guidance. Whether the case is a recent or a historical allegation, these steps should help ensure fairness which in turn helps law firms and Chambers to protect their reputations.
Thirdly, language issues can be contentious. A range of terms are used in this sphere to describe the individuals involved in the case (accuser, complainant, victim, survivor and accused, perpetrator) as well as words to describe what happened (allegation, disclosure, report, case, testimony). We have found that language issues are important to iron out and should be consistent from the beginning; it is important to avoid potentially biased language.
Finally, investigations. The following issues tend to come up frequently in law firms and Chambers investigations:
- Informal resolution. Whilst the response to a complaint of sexual harassment must be proportionate, informal resolution of complaints will rarely be appropriate as even in lower-level cases there is likely at the very least to be a need to review matters with a focus on training needs and culture. Complainants should never be expected to resolve their complaints informally and directly with an alleged perpetrator.
- Failures in planning. Investigations which are not properly scoped and planned can (and often do) go wrong. Project management is key, and it is critical to have a clear sense of the process that is being followed. For example, will the investigator review records and documents first, or meet the complainant first?
- Interviews. Problems also arise where interviews are not conducted properly and notes are not clear and thorough. In some cases an independent, external investigator will be appropriate particularly where the allegations are against someone very senior. Independent lawyers can be good investigators or legal advisors may be helpful for ensuring a robust interview or drafting frameworks of questions. Good HR consultants are also used for their experience of procedures and familiarity with the ACAS code. More recently, we have used specialists from the area of sexual violence to conduct and support investigations and carry out interviews. They are generally experienced in meeting victims and bring a wealth of knowledge.
- Reports. We have seen many examples of poorly drafted investigation reports which open the business to challenge. Consult the ACAS Code and Guidance and take advice on the report. Think about privilege – the report itself is unlikely to be privileged: advice on process and on outcomes may well be.
- Flexibility. Terms of reference that lack flexibility can also cause problems. It is advisable to insert clauses into the terms of reference which give the investigation team, by agreement with the employer, the latitude to adjust the scope of the investigation, should that become necessary. Investigations should in some ways be responsive processes that have the flexibility to respond to new information.
- Referring to regulators. In certain cases, reports may be made to Police and the professions’ regulators. Law firms and the Bar should always be alive to the fact that the underlying complaints may be criminal and/or regulatory matters in which case care must be taken to liaise with those agencies to ascertain who will lead an investigation.
In addition, sexual harassment investigations can be particularly complex because:
- serious sexual misconduct is often not committed in front of witnesses, although during an investigation it is useful to look through employee files or, when interviewing witnesses, look for indicators of behaviours which are relevant and might build a picture of someone who poses a risk; and
- anonymity crops up more commonly in sexual misconduct investigations. The reasons for witnesses seeking anonymity should always be carefully explored with them. ACAS advises that guarantees of anonymity should be avoided as they are likely to disadvantage the person who is the subject of the investigation on the basis that it is more difficult for them to challenge anonymous evidence – so care needs to be taken in this area.
Finally, non-disclosure agreements have been the subject of much press interest and the use of these has significantly changed in recent years as a result. The SRA issued a warning notice about the use of NDAs in March 2018 and recently updated this in November 2020 (see here). We have found that in settlement agreements, whilst NDAs/confidentiality provisions are still present (and can still provide benefits to both parties), they should contain substantial exclusions allowing reports to be made to the police and others and for the purposes of seeking medical advice and talking to family about what happened. Care should be taken in relation to confidentiality clauses in the employment contract itself: we have seen examples of restrictive confidentiality agreements that do not contain all of the necessary carve outs.
Overall, we have seen huge progress in the landscape in the last few years in this respect. Having sexual harassment issues at the forefront of our collective minds is critical and has led to behaviours being called out at an early stage. Knowledge and training are key – but we cannot be complacent: there is still a way to go and progress to be built on the steps already taken.
Rachel Lewis and Maria Strauss Farrer & Co