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Sexual misconduct, non-disclosure agreements (NDAs) and #metoo

In recent years, the #metoo movement has empowered victims of sexual misconduct, harassment and victimisation to speak out about their treatment in the workplace. The solicitors’ profession is no exception and the SRA has made clear that it takes allegations of sexual misconduct extremely seriously, whether the conduct occurs in or outside the workplace.

The associated – and, in particular, the improper – use of confidentiality clauses, commonly known as non-disclosure agreements (NDAs), in cases of workplace harassment and discrimination has also been a defining issue for the SRA over the same period.

Whilst NDAs can be used legitimately and are often of benefit to both parties, the inherent power imbalance between employee and employer can also result in the employee agreeing terms that are objectively oppressive or even, potentially, unlawful.

Unless sexual misconduct and NDA issues are handled extremely carefully, either or both can lead to serious regulatory repercussions. This is the case even for individuals who were not directly involved in either the incident or the agreement of the NDA. For example, a witness’ failure to report an incident could also amount to a breach of professional obligations.

The SRA is not only taking action against the individuals accused of wrongdoing and is unafraid to take action against firms whose culture permits – or fails to minimise the risk of – such incidents occurring, where investigations have been poorly managed or where oppressive or unlawful NDAs have been agreed. Nor is it afraid to take action against even the biggest firms: it has already brought high-profile cases against and involving magic circle firms and its determination to take enforcement action in this context continues.

Your duties to report to the SRA, which include a duty to self-report where appropriate, may also be engaged. Balancing your duties and knowing when and how to report can be difficult.

Whether you are a legal professional, law firm manager or compliance officer, we can provide clear, impartial advice to help you navigate these complex issues, including where you or your firm are or may be subject to a regulatory investigation.

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