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Law firms should now expect the SRA to investigate discrimination claims
The #metoo movement has opened a Pandora’s box for professional services firms. In the legal profession high profile and public senior departures at Latham and Baker McKenzie demonstrate that firms are responding to pressure to hold their hands up and publicly be seen to take responsibility for sex discrimination and harassment.
Now the SRA is stepping up its response, with Dentons reported to be facing disciplinary proceedings after losing a sex discrimination claim in the Employment Tribunal earlier this year. Unusually it’s the firm itself, rather than individual solicitors, which is being targeted. The judgement roundly criticised Dentons as lacking honesty and credibility in a redundancy process the Tribunal found was aimed at removing an employee from its recruitment team following her return to work after maternity leave. With clients and prospective talent asking more questions about what firms are doing about diversity this is not a situation any firm wants to find itself in.
SRA: tough talk and tough action
The SRA and the Law Society have previously issued statements condemning harassment by solicitors. This includes warnings that anyone found guilty of harassment is now likely to face SRA disciplinary action and guidance on the use of NDAs (non-disclosure agreements) to protect those who may have sexually harassed colleagues. The SRA is showing it is prepared to follow tough talk with tough action, perhaps in anticipation of possible new legislation which will require this approach.
The Women and Equalities Committee report which came out over the summer recommended that the Government require regulators to put in place action plans to reduce sexual harassment. It also recommended that harassment should be regarded as a breach of professional standards for which regulator sanctions should apply.
What is clear is a growing confidence to speak up about harassment, but reporting may not be direct to the firm. We are aware that the SRA has significantly increased the size of its team in light of a notable hike in complaints about harassment (from a few last year to 50 so far in 2018). That is not surprising given the preliminary findings of an IBA report, which found that only one in five complaints of harassment are reported for fear of reprisals and career damage. It also found that in 2/3rds of the complaints which were reported the firm’s response was ‘insufficient or negligible”, and in 3/4s of these the perpetrator was not sanctioned.
Are your staff confident to report?
Unless firms create an environment in which staff have confidence that their report will be taken seriously and that they will be safe from reprisals, they will not have the opportunity to try to manage the situation with an approach consistent with SRA expectations before the SRA kicks off its own investigation.
Now is the time for firms to take an honest and critical look at their culture, the behaviours of their partners and staff and to consider what positive steps might be taken. This could help a firm to defend legal and regulatory concerns. In particular, if the SRA do come knocking there is positive evidence that the Firm is acting consistently with the standards the SRA expects.
We work with firms’ leadership teams and HR teams to address these issues and put effective reporting frameworks in place. If you are concerned about any of the points raised here please contact Joanna Chatterton or your usual Fox Williams contact.