Written submission from a member of the public (SHW009)

Introduction

1. I am unable to submit the complete details of my experience, given that I do not wish to
jeopardise any future tribunal proceeding or criminal trial in relation to my specific circumstances.
2. I remain committed to the individual concerned being appropriately sanctioned, and the route
to achieving a satisfactory outcome is continuing.
3. In brief, I was sexually assaulted by a partner of a magic circle law firm, whilst I was a junior
lawyer in the same team. The assault was a serious breach of my privacy, and caused significant harm
to my mental health. I no longer work at the relevant firm.
4. The investigation which followed, and the handling of my complaint more generally by the
firm, significantly contributed to the distress I was experiencing as a result of the assault.
5. I refer to the Terms of Reference provided by the committee, and set out below my
observations and recommendations based on my own experience.

Sexual harassment policies / alcohol policies / firm wide training and awareness

6. Throughout my own experience of reporting an incident of sexual misconduct, it was clear

that the firm was not prepared for, and lacking in the relevant expertise, to deal with a complaint of such
a serious nature. I am unable to provide further specific detail or examples, given that the investigation
into the firm’s handling of my complaint is continuing.
7. In my view, a sexual harassment policy, and separately or in conjunction with this, a policy
which outlines acceptable consumption and use of alcohol at work and work-related events, should be a
mandatory requirement for all firms (the detail and extent of such policies to reflect the size of the
organisation to which it relates).
8. There is a particular need for thorough and detailed policies in large city firms, where there is
a culture of excessive consumption of alcohol, and where incidents of sexual misconduct are rife.
9. An obligation on each firm to produce and maintain such policies should be expressly set
out in the Solicitors Regulation Authority (SRA) Code of Conduct.
10. In my view, a whistle blowing policy, or policies of a similar nature, are not appropriate in the
circumstances and cannot be easily applied to incidents of sexual misconduct. Such incidents should
be dealt with expressly via separate policy or policies.
11. Such policies should be easily accessible to all employees, and the subject of regular
review. They should also be available to all former employees on request.
12. In my view, a detailed and thorough sexual harassment policy should include the following:
a. details of third party organisations and health care providers, who can help and offer
advice to complainants in relation to their physical and mental health following an incident of
sexual misconduct;
b. a detailed summary of the expected standard of behaviour from all staff (with
an express commitment that such policies are applicable to staff of all seniorities);
c. guidance on how to report an incident of sexual misconduct – see below;
d. the procedure for dealing with such complaints, to include an indication of who at the
firm will likely be notified, possible outcomes, and likely further input which will be required
from the complainant;
e. the possible range of sanctions if the complaint is upheld, together with an indication
of the policy for suspending individuals (and the criteria for doing so) pending such
investigation being completed;
f. an appeals policy for all parties;
g. an indication of how and when external bodies will be notified (i.e. the SRA), and a
description of the relevant firm’s obligations in this regard. A firm should also set out its own
obligation and commitment to take all such complaints seriously, and it should be stated that
expert third party agencies may be consulted to the extent that there are serious concerns about
the physical or mental wellbeing of the complainant.
13. Such policies should be accompanied by firm-wide training on both the standard of behaviour
which is expected, and on how employees should deal in the first instance with any concerns which are
raised with them personally.
14. Such policies should be developed in conjunction with employee committees of all seniorities,
and advice should be sought from agencies specialising in incidents of sexual misconduct.
 15. An awareness of the likely effect of a workplace investigation on the complainant should be a
key consideration in the development of the policy.

Industry standard

16. Developing an industry standard with regards sexual harassment and alcohol policies is
something which should also be explored, possibly in conjunction with the SRA and rape and sexual
assault support organisations.
17. There is, to my mind, some merit in requiring law firms to ‘sign up’ publicly to such a
standard, thereby publicly committing to the required behaviours (and potentially enabling a sharing of
demonstrably positive approaches and strategies between firms).

Reporting / designated individuals

18. Reporting incidents of sexual misconduct should be encouraged, and all complainants should
be respected and treated with care.
19. The routes to reporting should be numerous, given that individuals will have varying
preferences depending on the nature of their complaint and their personal circumstances.
20. In particular:
a. an ability to report complaints anonymously should be available, should the
complainant wish to do so;
b. designated members of staff should be appointed (and publicised as being available)
to discuss any concerns in the first instance. Both a man and a woman should be selected to
occupy such designated individual roles (possibly in each team – depending on the size of the
firm), and those individuals should be given separate training on how to deal with and respond
to such concerns;
c. it should be made clear that heads of teams, HR departments and other key
individuals are all available to discuss concerns if necessary.
21. Whilst not all employees will feel comfortable reporting in the same way, it is possible that
visibly appointed individuals will encourage complainants to raise concerns on a more informal basis,
and discuss their options/next steps privately, should they choose to do so.
22. Encouragement to report all incidents of concern – including those of a less serious nature –
may prevent more serious incidents from occurring at all.

Investigations / standard of proof

23. In investigating a claim of sexual misconduct, the relevant firm should acknowledge that
testing the veracity of evidence, to the same standard expected and required in a criminal trial, is
neither possible nor appropriate in the employment/workplace context.
24. Firms should therefore be encouraged not to ‘hide’ behind the high standard of proof required
to achieve a conviction in a criminal trial.
25. Firms should recognise, and state publicly, that whilst a high proportion (if not all) incidents
relating to sexual misconduct in the workplace may also constitute a sexual offence (and that the
complainant is free to pursue such a route if they wish), the firm is inevitably concerned with a set of
different (albeit related) considerations, and not with surmounting the ‘beyond reasonable doubt’
standard of proof required to achieve a criminal conviction.
26. It should not be the case that an inability to achieve the criminal standard of proof prevents
a serious sanction or dismissal being imposed in the workplace context.
27. In assessing the severity of the incident, a firm should be concerned primarily with:
a. most importantly, the harm caused to the complainant;
b. the imbalance of power, if relevant, between the complainant and the relevant
individual;
c. the risk to other members of staff;
d. the lack of commitment to diversity and inclusion demonstrated by the relevant
individual;
e. a failure to act with integrity by the relevant individual, and a lack commitment to the
values and objectives of the firm; and
f. the risk of reputational harm (which should only ever be dealt with via a sanction being
imposed on the relevant individual, and never via a requirement that the complainant sign an
NDA or agree to a confidentiality undertaking – see below).
 NDAs / confidentiality undertakings

28. In my own experience, I felt compelled to agree to a confidentiality undertaking in order to

have access to details relating to the outcome of my complaint.
29. Broadly speaking, the language of the confidentiality undertaking prevented me from
sharing various details with others without the firm’s consent (with limited exceptions).
30. The confidentiality undertaking was unlimited with regards the period of time in
which it would remain binding.
31. Interactions with the firm with regards the confidentiality undertaking contributed
significantly to my distress.
32. There were particular points raised by the firm in relation to the confidentiality undertaking
which caused me particular concern, which again I am unable to comment on due to such actions being
the subject of continued investigation.
33. My view is that complainants should never be compelled to sign or agree to confidentiality
undertakings or NDAs in relation to a complaint they have made with regards sexual misconduct in the
workplace. All reputational concerns should be dealt with, if necessary, via the sanction imposed on
the relevant individual.

Regulatory investigation / guidance / timing

34. Due to my dissatisfaction with the firm’s process, I reported the incident to the SRA following
the conclusion of the firm’s own investigation.
35. At the time, the SRA had not released their recent guidance in relation to how the regulator
would likely deal with incidents of sexual misconduct, and I welcome the engagement from them in
relation to these issues.
36. I would encourage the SRA to go further, and publish advice expressly written for potential
complainants, which should be easily accessible on the SRA’s website.
37. The advice should set out how a report will likely be handled by the SRA in the first instance,
and refer expressly to organisations which can offer additional medical and/or emotional support.
38. The advice should also include an indication that it may be necessary to report the incident to
police or another enforcement body without the complainant’s consent (together with the regulatory
framework which allows the regulator to do this).
39. Whilst I am generally encouraged by the SRA in terms of the seriousness with which
they continue to handle my own complaint, I remain concerned about the length of time the process is
taking. This should be reviewed, and in particular the SRA should consider whether certain
standardised time periods within their investigation and tribunal processes could be abridged
in exceptional circumstances, such as in circumstances of serious sexual misconduct.

Conclusion

40. I am pleased to make this submission to the committee to assist with their enquiry. I am able
to give additional detail in relation to my own experience if that is helpful, although not to the extent
that any subsequent investigation, tribunal or criminal trial is jeopardised.

June 2018