The Solicitors Regulation Authority (SRA), the body which regulates solicitors in England & Wales, recently told Bloomberg that it has received more sexual misconduct and harassment complaints in the first half of fiscal year 2017-18 (19 complaints) compared with the whole of 2016-17 (12 complaints) and that the complaints for both years are markedly higher than earlier years, demonstrating the powerful effect of the #metoo movement on the legal sector.
Law firms are not the only organisations to have been 'clearing out their cupboards' so to speak. HR departments in all type of companies, across all industries, are being forced to revisit complaints that could perhaps have been better dealt with previously, as well as dealing with current situations where complainants are emboldened by the current climate and are more prepared to call out behaviour that doesn’t measure up in the new world.
Complaints commonly include some or all of the following: allegations of sexual assault or harassment; allegations where a workplace relationship has gone awry, and/or there is an imbalance of power or status; discrimination; allegations involving consent – whether it was informed, understood or freely given.
Employers need to consider their legal obligations to all employees involved, both suspect and complainant(s).
One lesson for HR managers across all such situations is the importance of making an early call about the nature of the allegation, the scope for an employer-only response and the process that will be followed - considering the impact (if any) of external factors on the substance and timing of that process. It is essential to decide, for example, if the police will need to be involved if allegations are of a criminal nature or whether there may be an obligation to notify a regulator, like the SRA, either for an individual concerned or the employer organisation. An incorrectly conducted investigation may fatally infect evidence which could otherwise form the basis of an independent, criminal, investigation. Regulated organisations may find that their regulator critically appraises how they handled things, and this inevitably raises the stakes when investigations are being conducted.
These factors will influence not only how an investigation and potential disciplinary process is shaped and conducted, but also the extent to which complainants and suspects decide they can participate in a workplace investigation process.
HR managers should be aware that for a suspected employee, the decision as to whether to engage with an investigation or disciplinary process, may involve competing considerations. These may include:
- Whether engagement will maximise prospects in terms of name-clearing and job preservation, or if it could potentially damage exit terms;
- Whether any account of events, either given informally or during a formal HR process, may prove disadvantageous during a subsequent police investigation;
- Whether a regulator would look at any account given in subsequent regulatory proceedings and in taking decisions about any sanction.
In addition HR departments need be cognisant that old ways of dealing with complaints from an employment law perspective are no longer valid. Until last year, for example, non-disclosure clauses in settlement agreements were considered perfectly normal practice, even routine. Nowadays blanket confidentiality clauses and clawback / forfeiture clauses requiring settlement monies to be repaid in certain circumstances need to be considered much more carefully and may no longer be appropriate. The reputational question of whether to hush up an incident or tackle a problem head-on has become much more complicated in the post #metoo world.
In short there is no longer any single roadmap for dealing with sexual misconduct allegations in the workplace – they involve tricky judgment calls and require even more careful handling than ever. A single allegation may give rise to interwoven questions about the future of the employment relationship; criminal liability; regulatory responsibilities; and reputation management. HR teams need multifaceted advice before they embark upon a process and arrive at outcomes. Otherwise decisions made in haste, often in very pressured circumstances, could come back to haunt them.
First published in HR Magazine, 24 July 2018.