sam mangwana clare murray cm murray llp · sra principles 2011 • principle 1: uphold the rule of...

Sam MangwanaClare Murray

CM Murray LLP

HR in LawSexual Harassment in Law Firms

– Prevention and ResolutionsPreserving Careers, Protecting Reputations, Managing Risk

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Preserving Careers, Protecting Reputations, Managing Risk

Summary

• SRA Warning Notice: action for law firms and managers

• Steps to prevent sexual harassment and how to enable reporting

• Investigating sexual harassment complaints

• Special issues including confidentiality and anonymity

• EHRC report, guidance for law firms, recommendations for change


Sexual Harassment• Definition:

• Unwanted conduct

• Purpose or effect of:

• violating dignity; or

• creating an intimidating, hostile, degrading, humiliating or

offensive environment.

• Unwanted conduct of a sexual nature;

• Less favourable treatment because of refusal to submit (or

submission) to sexual advances.

• Complainant need not be subject of treatment.


Grievance Procedure

• Complaint of sexual harassment likely to be a grievance

• Internal grievance procedure – who does it apply to?

• ACAS Code

• Suspension?

• Temporary changes to reporting lines?


Grievance - Investigation

• Investigate:

• Consider identity of investigator

• External investigator?

• Privilege

• Timing

• Witnesses

• Anonymity and confidentiality – don’t over promise

• Minutes – disclosure obligations

• Right to be accompanied?


Grievance - Process

• Decision maker(s) – separate from investigator?

• Grievance hearing:

• Right to be accompanied

• Written outcome – but also delivered in person?

• Right of appeal:

• Identity of appeal decision maker

• Re-hearing or re-consideration?


Grievance - Outcomes

• What if a finding of sexual harassment is made?

• Disciplinary action against perpetrator

• Appropriate sanctions

• Adjusting reporting lines

• Monitoring outcome of disciplinary

• Departure of victim

• Reporting to the SRA?

• SRA Warning Notice on NDAs

• Threshold for reporting – serious misconduct, serious failure

to comply


Historic Allegations

• Re-opening old investigations?

• Dealing with breaches of old NDAs


SRA Warning Notice on NDAs• Issued 12 March 2018 as “Reminder” of key risks and issues to:

• Managers and employees of law firms

• HR and Complaints managers in law firms

• Practitioners advising clients on the use of NDAs

• SRA Principles

• SRA mandatory outcomes

• Examples of improper use of NDAs

• Published questions of ethics:

• Settlements involving allegations of discrimination

• Complaint of sexual harassment

• SRA enforcement action for failure to comply


SRA Principles 2011• Principle 1: uphold the rule of law and the proper administration

of justice

• Principle 2: act with integrity

• Principle 3: act independently

• Principle 6: behave in a way that maintains the trust the public

places in you and in the provision of legal services

• Principle 7: comply with your legal and regulatory obligations and

deal with your regulators and ombudsmen in an open,

timely and co-operative manner

• Principle 8: carry out your role in the business effectively and in

accordance with proper governance and sound

financial and risk management principles


SRA Code of Conduct 2011: Mandatory Outcomes

• Outcome (10.3): notify SRA promptly of serious failure to

comply with or achieve the Principles, rules,

outcomes, Handbook requirements

• Outcome (10.4): report to SRA promptly, serious

misconduct by any person or firm authorised

by SRA, or any employee, manager or

owner of any such firm

• Outcome (10.7): do not attempt to prevent anyone from

providing info to SRA or Legal Ombudsman

• Outcome (11.1): do not take unfair advantage of 3rd parties

in your professional or personal capacity


SRA Examples of Improper Use

• Seeking to prevent, impede, deter or influence:

• Reporting to regulator or law enforcement agency

• Protected disclosures under PIDA 1998

• Co-operating with a criminal investigation or prosecution

• Improper threats (eg. defamation or other litigation)

• Preventing a party to an NDA from retaining a copy

• Including unenforceable clauses


Equality and Human Rights Commission Activity

• Warning Letters to Chairs of FTSE 100

• Systemic failure to prevent, or deal with, sexual harassment

• Evidence of safeguards in place

• Steps taken to encourage reporting

• Action plans to prevent in future

• Legal Guidance for employers

• https://www.equalityhumanrights.com/en/publication-

download/sexual-harassment-and-law-guidance-employers

• Survey: 1,000 individuals and employers

• Findings and Recommendations for reform


EHRC Recommendations

• Turning the tables: Ending sexual harassment at work

• Key recommendations:

• Mandatory duty on employers to take reasonable steps to

protect workers

• Introduction of statutory code of practice on harassment

• Centralised online reporting tool

• Centralised data collection

• Obligation on employers to publish policy


EHRC Recommendations

Key recommendations:• Extension of limitation period to 6 months

• Interim relief

• Restoration of tribunal powers to make recommendations for

the whole workforce

• Reintroduction of statutory questionnaire procedure

• Reinstatement of third party harassment protections


Useful Links• Acas statutory Code of Practice on disciplinary and grievance procedures, March 2015

http://www.acas.org.uk/media/pdf/f/m/Acas-Code-of-Practice-1-on-disciplinary-and-grievance-

procedures.pdf

• SRA warning notice, March 2018

https://www.sra.org.uk/solicitors/code-of-conduct/guidance/warning-notices/Use-of-non-disclosure-agreements-

(NDAs)--Warning-notice.page

• SRA warning notice, March 2018 SRA Question of ethics: settlements involving allegations of

discrimination and handling complaints of sexual harassment

https://www.sra.org.uk/solicitors/code-of-conduct/guidance/questionofethics/March-2018.page

• EHRC – Sexual harassment and the law: guidance for employers

https://www.equalityhumanrights.com/sites/default/files/sexual-harassment-and-the-law-guidance-for-employers.pdf

• EHRC – Turning the tables – Ending sexual harassment at work

https://www.equalityhumanrights.com/sites/default/files/ending-sexual-harassment-at-work.pdf


Effecting Change in law Firms

Common problem scenarios

Need for a sector change to view them:

• As cultural (and societal) issues which affect the health and

wellbeing of staff, and in turn damage the long-term success and

profitability of the business

• Rather than as primarily a litigation risk


Prevention • Prevention

• Sexual harassment risk assessments across the firm by HR & management, to identify key risks in your practice areas

• Anonymous surveys to gauge sexual harassment risks?

• Tailored policies

• Tailored and effective training relevant to:• the legal sector, • your firm and • those identified risks, • regularly evaluated to ensure it is working

• Identifying and reporting patterns, even if no complaints – if you see a pattern, to whom/how do HR report it safely?


Prevention • Ongoing information campaigns

• What is sexual harassment - identify typical examples

• What is consent - can a drunk colleague give consent?

• It’s ok to say no - providing the language and backup

• Permission / responsibility (?) to intervene safely

• Lead from the top

• Engagement, endorsement and enforcement by senior

management

• A key expectation of all partners to walk the talk


Improving Reporting

• Improved reporting

• Internal advocates at all levels in the firm, with specialist

training

• Anonymous whistleblowing hotlines?

• Reporting Chatbots:

• Spot

• #NotMe App

• Bystander reporting


Engaging Partners• Clear rules, policies & training specifically for partners on

• Need for visible endorsement of anti-harassment policy

• What firm regards as appropriate & inappropriate conduct

• Relationship reporting obligations?

• Policy to prevent misuse of power in event of relationship

• Likely outcomes for partners if things go wrong

• How to respond if partner is object of sexual advances by staff

• Partner Advocates (with specialist training)

• Link compliance to partner development reviews, remuneration

allocation, and PGH & senior management appointment criteria

• Be curious in recruitment & provide opportunity to explain


Bystander Reporting

The Bystander Effect

Experiments show that the more people who witness a catastrophic

event, the less likely any one person will do anything - each person

thinks someone else will take responsibility.


Barriers to Intervening• Social influence – there cannot be a problem because no one else is

intervening

• Audience inhibition – fear of embarrassment in front of others

• Diffusion of responsibility – assumption that another will intervene and/or someone else is more qualified to help

• Fear of retaliation

• Pluralistic ignorance – not understanding the desire of others to intervene which leads individual to believe their own desire to intervene is misplaced.

• Very hierarchical structures


Bystander Training Intervention training

• Teaches bystanders to do something

• Recommended employers include this type of training with harassment

training

• Strategies include creating a distraction

Stages to encourage intervention by bystanders

• Noticing the problem

• Identifying it as a problem – set clear workplace standards and visibly

enforce

• Deciding whether to act - Make it easy to report inappropriate conduct

• Deciding to act and possessing necessary skills to act – train staff and

advocates on this


CAPSLE ProgrammePsychodynamic approach to bullying in schools trialled by UCL

Creating a Peaceful School Learning Environment (CAPSLE) -implemented to create a relationship between bully, victim andbystanders.

• Emphasis on the need to understand rather than react to others &avoid problems created by regression into victim, victimiser & bully

• Poster campaigns, stickers and badges used to create a climate wherefeelings were labelled, & distress was acknowledged as legitimate

• Aim of changing the way the entire school social system viewedbullying

• Generated more positive bystanding behaviours, greater empathy forvictims, and less favourable attitudes towards aggression

https://www.ucl.ac.uk/media/library/bullying -


Green Dot Training (US)Increases proactive preventative behaviour by targeting influentialmembers from across a community with basic education, skill practiceand reactive interventions to high-risk situations.

• When choosing to be a proactive bystander this is recorded as a newbehaviour – a “Green Dot”. Individual decisions (Green Dots) grouptogether to create larger change.

• Research in 2014 compared 3 campuses in America, one of with GreenDot training and the remaining campuses having no bystanderintervention training:

• Rates for sexual harassment were significantly lower for maleswho had attended Green Dot training

• Overall victimisation was lower for women and men on Green Dotcampus

https://cultureofrespect.org/program/green-dot-etc/


Bystander ReportingIntervention Initiative – Exeter University • Education programme designed to help individuals recognise what constitutes

sexual violence and further allows them to practice how to intervene when acting as a bystander

• Currently being used in 50 universities across the country

• Encourages individuals to act as a prosocial individual – by confronting difficult conversations, constructing safe areas for expressing ideas and building the confidence in individuals to come forward

Guy Dehn - Witness Confident • Charity founder Guy Dehn’s aim is to increase the number of people who report

crimes and prevent those who ‘walk-on-by’ by campaigning for a more enlightened criminal system to better serve victims, witnesses and the wider public.

• Charity developed a free smartphone app called Self Evident which enables users to collect on-the-spot reports of crimes. The app itself currently has 13,500 users.


Travers Smith ‘that’s not cool’

• New policy introduced to call out inappropriate language in the workplace.

• The safe word ‘that’s not cool’ is to be used by anyone not feeling comfortable with something a colleague has said.

• The Firm’s aim is create an environment that is more inclusive and supportive.

• The policy itself does not replace traditional disciplinary or whistleblowing procedures available to employees already.

• Campaign is being promoted internally through posters and training sessions and to date, has received good feedback.

• It involves the concept of making things non-confrontational.


Sexual Harassment

Questions


Contact DetailsSamantha MangwanaPartner

CM Murray LLP

36-38 Cornhill

London

EC3V 3NG

T: 020 7933 9133

[email protected]


Clare MurrayManaging Partner

CM Murray LLP

36-38 Cornhill

London

EC3V 3NG

T: 020 7933 9133

[email protected]

sam mangwana clare murray cm murray llp · sra principles 2011 • principle 1: uphold the rule of...

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