In this article, first published by The HR Director, our partner, Emma Bartlett, discusses the increase in reports of sexual misconduct complaints in the workplace and the key legal and regulatory issues for employers to consider when addressing such allegations.
That sexual misconduct is serious is an obvious statement, but the trouble with many workplace complaints of sexual misconduct is that the employer’s first response often does not reflect the gravity of the situation. Sexual harassment, which includes sexual misconduct, in the workplace is unlawful under the Equality Act 2010 and it is likely to also constitute a criminal offence.
Since #MeToo, employers have reported increased sexual misconduct complaints in the workplace. The fact that some complaints relate to conduct several years ago does not diminish the seriousness with which the employers should approach them. Evidence gathering may be hampered as memories fade and certainly diminish prospects of criminal prosecutions as critical, contemporaneous evidence may just not exist, but employers must act appropriately and with speed once they become aware of the complaint.
Professional regulators expect employers to identify employees as being fit and proper; a benchmark for the individual’s honesty, competence, capability and soundness. Sexual misconduct for solicitors will not only breach the employer’s code of conduct, but will breach the principles that solicitors must act with integrity and maintain public trust in the profession for which the regulator has the power to discipline, suspend, fine and/or strike off the individual and issue fines to the relevant firm. There is a groundswell in pressure on regulators to utilise the full extent of their disciplinary authority and not just issue fines, often seen as insignificant amounts, but instead to suspend and ban. The Solicitors Regulation Authority, for example, has responded to growing unease about penalties for acts of sexual misconduct, saying that fines are not enough.
Independence in a sexual misconduct investigation is core and treating the complaint with respect by notifying the regulator (if there is one) without delay, appointing an independent investigator and ensuring the complainant is supported are integral to creating confidence in the employer. Failure in any of these respects could result in independent investigation by a regulator, not just a disciplinary for the harasser but criticism of the firm’s handling. All concerned with the complaint should have relevant training – know how to respond to the complainant, the regulator and the alleged harasser. It can also lead to lack of confidence in the employer’s whistleblowing or grievance reporting processes, undermining the culture which management may wish to express.
Care should also be taken not to step on the toes of any criminal investigation. An overzealous employer could cause damage not just to the fairness of a criminal prosecution but the fairness of the internal investigation in its handling of a complaint. Sexual misconduct nearly always arises from power imbalances, the more senior manager usurping their position of trust. Alcohol is often involved. You can immediately see two really useful policies to have in place, and to police, to mitigate against this, aside from the usual ‘Don’t Breach the Equality Act’ policy, would be a ‘Please Avoid Having a Personal Relationship with a Member of Your Team Without Telling Us’ and ‘Minimise Alcohol Intake at Any Work-Related Event or Trip’ (or similarly worded policies). It sounds obvious, but they can be invaluable tools for the employer to nurture the right culture.
It is true to say that, ‘what gets measured, gets done’. If an employer is serious about how it handles sexual misconduct, it needs to be brave in how it measures its anti-harassment strategy. No complaints does not necessarily equal ‘no sexual misconduct’, no complaints might actually equal no confidence in reporting, which might therefore equal the organisation is not the employer of choice.
If you are a multinational employer and would like to discuss issues relating to sexual misconduct in the workplace or updating your workplace harassment policy, or for any questions arising from this article, please contact our Partner, Emma Bartlett, who specialises in employment and partnership law for senior executives, multinational employers, partnerships and partners.
This article was first published in The HR Director, April 2022. Reproduced with permission.
Emma Bartlett is recognised by Legal 500 UK 2022 as a ‘Leading Individual’ in the field of employment law (senior executives) and is recommended as a ‘Global Leader’ by Who’s Who Legal Labour and Employment 2021. ‘Exceptional in understanding the case details and bringing up the points that matter for winning…Emma is extremely honest, truly a warrior to bring justice and never deterred.’ (Legal 500 UK 2022)
CM Murray is ranked in Tier 1 for Employment (Senior Executives) by Legal 500 UK 2022. ‘Brilliant employment law team…Incredibly talented knowledgeable and commercial in their very professional approach. Very able in international employment matters.’ (Legal 500 UK)
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CM Murray LLP is ranked in Band 1 by Chambers and Partners 2022, ‘they’re top-notch lawyers and are very knowledgeable, dedicated and reliable. The team is particularly business-minded and operates with an international mindset, meaning that they are very comfortable with cross-border issues.’ (Chambers and Partners UK 2021).
