The ethics of workplace relations
Posted on 06 February 2020
As reports of sexual harassment in the profession have gone public over the last 12 to 24 months, so too have accounts of how practitioners and their firms have dealt with such reports and are dealing with the wider matter of workplace relations.
The recent rise in reporting has given some solicitors pause for thought about whether romantic relationships between colleagues are still permitted or whether they will soon be outlawed by employers or the regulator.
Whilst forming a romantic attachment with a colleague undoubtedly presents a number of important considerations to weigh up before making a first move, by engaging an ethical approach, taking time to reflect on and, where necessary, debating what is regarded 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 of such importance to the work, clients and reputations, it is hardly surprising there is an expectation that legal practitioners must be at the forefront of compliance with equality laws.
So, what constitutes sexual harassment and how should individuals deal with it if they witness it? What obligations are there 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?
What is sexual harassment?
Harassment is defined under the Equality Act 2010 as unwanted conduct relating to a protected characteristic (age, disability, gender reassignment, race, religion or belief, sex 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 a specific act constitutes harassment, the 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, including remarks about someone’s appearance, their sex life or offensive jokes; displaying explicit images; unwanted sexual advances and sexual assault.
How should regulated professionals and firms behave?
Sexual harassment does not necessarily need to take place in the office for it to be caught by the professional rules. There are not only regulatory implications for the perpetrator, but potentially also for anyone who witnessed 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, Code for Individuals) and firms (Paragraph 3.9, 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 any person regulated by the SRA or another approved regulator.
Individuals can discharge the duty by reporting concerns to their Compliance Officer for Legal Practice (CoLP), to enable the CoLP to exercise their professional judgement on whether a matter needs to be reported to the SRA. However, where the individual believes a report should be made and is not satisfied the CoLP will form the same view, the individual is expected to make the report themselves and a failure to do so could represent a breach of the rules.
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 will need to consider the reporting rules. An obligation to report can arise irrespective of whether the victim of the sexual harassment has made a complaint to the firm or the firm has had an opportunity to investigate.
In conducting an investigation into concerns about sexual misconduct, 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. Additionally, 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 the victim may have a (further) claim under the Equality Act.
In dealing with internal matters and when advising their own clients, solicitors need to be careful about the use of non-disclosure agreements (NDAs). Paragraph 7.5 of the Code for Individuals stipulates that 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 has published a warning notice on NDAs, which 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 SRA’s approach to reports of sexual misconduct
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, Mr Philip 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”. Philip 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.”
These statements give an indication of the SRA’s thinking about the professional rules that are offended by sexual misconduct, with the references to “integrity” and “societal expectations” pointing to the Principles that underpin the rules governing the profession.
The Principles have been revised, reduced and renumbered as part of the SRA’s StaRs. The most significant changes in this context are, arguably, that in 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 (a reworking of Principle 6 under the 2011 Code of Conduct) 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.”
The SRA clearly views sexual misconduct as a serious subject and something that undermines the very essence of what it means to work in a regulated practice.
Ethical considerations in workplace relations
Where there is no question of sexual harassment being an issue, there are still ethical considerations individuals should address their minds to before forming a relationship with a colleague. These are matters that firms also need to be alive to, in order to be effective and responsible managers:
- Where there is an imbalance of power between individuals, there is a need to appreciate the implications that may have for each member of the couple, their teammates and the employer;
- where colleagues are in the same reporting line there is a risk (real or perceived) of unfair advantage that, in turn, can have an impact on team morale and productivity;
- one or both members of a couple 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 information from being disclosed when it should not be;
- 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 employees stayed in their original roles.
In recent years, some large UK firms have asked staff to sign contracts that require them to disclose any romantic relationship with a colleague. Other firms are said to have introduced policies that only require 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?
As an alternative, if firms distinguish sexual harassment from workplace relations and communicate a no-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 recognise that whilst conversations about conduct and, particularly, sexual misconduct may be difficult, they should not shy away from dialogue that has the potential to build environments where all staff can feel valued and can flourish.
- The SRA’s warning notice on NDAs.
- The Law Society has also published a practice note on NDAs and confidentiality clauses in an employment law context, which was last updated on 12 December 2019.
A version of this article was first published in the January 2020 edition of the Solicitor’s Journal (Volume 163 No.1)