Conduct (or rather misconduct) issues continue to dominate the headlines in the legal and professional practices press and can make for uncomfortable reading for the firms affected, with the regulator also taking an active interest.
Accordingly, many firms are reviewing and reassessing their risk profile. As part of this process, a review of the firm’s suite of internal policies and codes of conduct will be necessary. This should include revisiting the applicable reporting procedures and appointing appropriate senior individuals for staff to report any concerns to. A comprehensive training programme to communicate these polices and firm expectations on conduct should also follow the introduction of any new or revised polices.
There should also be a review of the proper procedural approach to be followed by the firm in the event that allegations of sexual misconduct or bullying are raised, including considering possible regulatory issues at the outset, as well as the possible suspension of the accused. Internal guidance on the investigation process to be followed and the appointment of an appropriate investigator should be introduced. There should also be clarity on the further process to be followed once the investigation is complete and the possible range of sanctions, including expulsion.
Some Key Areas of Risk
Based on our practical experience working within the professional practices sector, there are some key issues which may increase the risk to firms of misconduct concerns arising. Whilst these may not have been addressed in the applicable policies and procedures historically, in the post #MeToo era they should be considered when drafting any new or updated policies and providing related training:
One key area which can impact the overall risk profile for a firm is alcohol consumption in the work context. It is common ground that alcohol can impair judgment and can increase the risk of inappropriate conduct and alcohol does play some role in many of the reported cases of sexual harassment. Increasingly internal policies will now include a reference to a requirement to moderate drinking at work events. As reported in the press recently, some firms have even started introducing a chaperone or conduct moderator at workplace events to supervise behaviour.
The focus on limiting or reducing workplace drinking represents a key cultural shift, as historically alcohol has been an accepted part of both firm and also client events. Alcohol was seen to facilitate a more relaxed social interaction, allowing for individuals to build better working relationships.
However, there is an argument to say the approach to socialising in the work context in the post #MeToo era needs to be reinvented and from a risk perspective for firms, a coherent and considered policy to workplace socialising does now need to be given some serious consideration.
Work events with a focus on alcohol consumption may also be seen to be excluding certain groups from workplace or client socialising, including individuals who may not drink for religious or cultural reason or individuals who are pregnant and this can be seen as a further argument for firms to encourage other forms of social activity and team building.
Relationships at Work
In some jurisdictions relationships at work are commonly prohibited as illustrated by the press headlines in 2019 regarding the resignation of Intel’s CEO for engaging in a workplace relationship in contravention of the company’s policy on relationships at work. In the UK, this approach is less common and individuals generally have an expectation of a right to a private life and many couples still do meet at work and go on to have successful relationships, which do not impact the workplace.
However, things become more difficult when a relationship is entered into with one individual being responsible for the promotion or pay of another or acting as their line manager. This can give rise to a potential conflict of interest. Difficulties can also arise when workplace relationships end, particularly when the individuals still need to interact regularly for work. For these reasons some firms are now introducing a policy requiring staff to inform them if they enter into a relationship at work, if this may raise any issues around a conflict of interest, particularly if there is also a line reporting relationship, to allow them to monitor and address any potential concerns.
An increasing array of communication channels are used within firms and their teams, from WhatsApp to internal chat systems and texts. The informality of these modes of communication can sometimes lead to communications which may be deemed inappropriate, and can lead to issues of concern, such as late night messages to junior team members or communications using language which may be considered offensive.
Many firms are now setting out the expected communication channels (usually the default channel will be email) and some guidelines on the tone and timing for communication on work matters between team members, to try and limit the risk of alleged inappropriate conduct.
By way of recap, the key policies firms should have in place in the post #MeToo era will include comprehensive equality and diversity, bullying and harassment and disciplinary and grievance procedures. Firms should ensure that all staff, including partners or LLP Members, are covered by and receive copies of these policies (adapted for partners as appropriate), and are made aware of any updates to the policies when these are made.
An equality and diversity policy
An equality and diversity policy should set out what is meant by the various applicable terms, such as discrimination, harassment and victimisation. The aim should be to inform staff on what constitutes unlawful conduct under the Equality Act 2010. This policy should also explain the consequences of a breach.
A bullying and harassment policy
A bullying and harassment policy will set out what is meant by bullying and harassment and it should make the definition of harassment clear, ideally also providing practical examples, as this is often something which staff can be unsure on. It should also set out confidential reporting mechanism to raise possible concerns. This could be very important as often in cases of sexual harassment or bullying the employee affected may not feel comfortable raising concerns with certain colleagues.
A disciplinary policy
A disciplinary policy will set out the types of conduct which may trigger a disciplinary process, together with the procedure to be used. The policy will usually set out a list of possible sanctions available to the firm if someone is found guilty of misconduct. If someone is found guilty of sexual harassment, this will often constitute gross misconduct, depending on the extent of the behaviour and may lead to dismissal or expulsion.
It is also recommended practice to run regular training sessions for employees and partners on equality and diversity and harassment and bullying issues. This should include training on the expected standards of behaviour and the concepts of discrimination, harassment and victimisation. Without this regular training, any related policies will offer more limited practical protection for firms facing potential claims.
For any firm which wishes to address the risk of misconduct, including sexual harassment and bullying claims in the workplace, it is vital that those who experience harassment know that they are protected and that there are clear steps which they can take to raise any inappropriate behaviour. There also has to be a clear message that there will be a zero tolerance approach to any behaviour which may constitute sexual harassment or bullying with clear communication and training about expected behaviours. This can create the appropriate culture and an environment where people aim to treat each other with respect and are more willing to speak up when something does go wrong. This in turn should allow firms to address any potential issues at an early stage, minimising the potential risks to both the firm and its staff members.