The legal sector and #metoo – clarification from the Law Society

As covered in our previous article, the joint statement referred to the fact that “everyone has a duty to help end harassment of any kind”. It went on to set out the fact that the professional obligations of solicitors mean that findings of harassment can lead to disciplinary action being taken by the regulator, the Solicitors Regulation Authority (“SRA”).

The accompanying factsheet issued by the Law Society caused a degree of debate, however, on account of its statement that all allegations of sexual harassment must be reported to the SRA. We commented that this appeared to go much further than the previously understood position. The SRA’s guidance on the responsibility of a firm’s Compliance Offer for Legal Practice (aka the “COLP”) is to keep a record of any SRA breaches, to be provided to the SRA on an annual basis, but the obligation to make a proactive report only applies to a “material breach”. 

We noted that, while there is a strong argument that an act of sexual harassment would be a material breach that should be reported to the SRA, many would conclude that an allegation that has not yet been investigated should not, at that stage, trigger a report. Nonetheless, the Law Society’s position seemed clear and unambiguous – an allegation would be enough to require a report to be made, whether the allegation is against a solicitor or anyone else in the firm.

The Law Society has now contacted us, apologised for the confusion caused and provided precisely the clarification we sought. They have explained that their factsheet will now be updated to make clear that the Law Society is not setting expectations over and above those that are set by the SRA:

“The Law Society has clarified that it is not proposing different reporting requirements to those set by the SRA. The question of whether a finding (following an investigation or admission) needs to be reported to the SRA should be made by reference to the SRA’s own requirements, which can be found at http://www.sra.org.uk/solicitors/enforcement/solicitor-report/other-solicitor-results.page. Any allegation should be promptly and responsibly investigated. A decision as to any report should follow completion of that investigation.”

Best practice

The Law Society evidently wants to make sure that all law firms are dealing with this issue and taking it seriously. There is a clear expectation that all allegations of this nature should be appropriately investigated, and the best practice advice continues to be that all law firms should ensure that:

• the firm’s leadership visibly and openly sets out and communicates a zero-tolerance approach to bullying and harassment in the workplace;
• core training is given to all staff and managers, with modules on equality & diversity, anti-discrimination legislation and guidance on the firm’s policies; and
• they establish a group of trained staff as “champions”, who members of staff can approach with concerns.

The Law Society’s confirmation that the SRA reporting requirements are unaffected resolves the immediate concerns that were held within the sector. That said, all firms still need to reflect upon whether they are doing enough about these issues, and whether they are setting the right tone from the very top.

How we can help 

If you would like to discuss how we can help with your firm’s response to this debate, or would like information about the services offered by our Investigations Team, or our diversity training modules, please get in touch with me or your usual Lewis Silkin contact.