Culture in law firms: New duty to prevent sexual harassment

Law firms will of course already be aware of the need to take any complaint of sexual harassment seriously.

But from 26 October 2024 there will be a new proactive duty on employers to “take reasonable steps” to prevent sexual harassment of their employees.

What does this mean for law firms, and what should law firms be doing now to prepare for this?

Back to basics: why do firms need to tackle sexual harassment in the workplace? 

The issues around sexual harassment claims aren’t just about managing the immediate issue and protecting and safe-guarding employees; they are also about managing consequential issues that can impact a firm – including negative publicity leading to reputational damage, managing difficult questions from current and prospective clients and the potential negative impact on recruitment and retention strategies. 

Taking proactive steps to prevent these issues arising will not only help law firms comply with their regulatory obligations and the new duty coming into force in October 2024 but will actually help with drives to an inclusive and positive workplace culture. 

In addition, heightened expectations for a positive workplace culture and a (rightfully) diminished tolerance for poor behaviour, mean that firms that neglect to prepare for this new duty could face an increase in harassment claims.

What is the current legal requirement in relation sexual harassment for employers?

Current legal duty

Sexual harassment is defined as unwanted conduct that is sexual in nature, where the purpose or effect of the conduct is to violate a person’s dignity or create a hostile environment. 

Unwanted conduct of a sexual nature encompasses a range of actions. Examples include sexual comments or jokes, displaying sexually graphic photos, spreading sexual rumours about a person, and asking intrusive questions about a person’s private or sex life.

Law firms can be vicariously liable for sexual harassment committed by one of their employees or partners against a colleague, although it is a defence for the law firm to show that they have taken “all reasonable steps” to prevent that individual from doing so. As a minimum, this means: 

• providing adequate and appropriate training of staff 
• dealing effectively with and investigating complaints 
• taking appropriate disciplinary action against harassers. 

Current regulatory expectations - Solicitors Regulation Authority (SRA) 

The regulatory expectations sit alongside (and are wider than) the legal requirements.

In April 2023, following high-value sex discrimination, harassment and bullying claims, and complaints of failure to address unacceptable behaviour, the SRA introduced new rules for solicitors and law firms on maintaining trust and acting fairly. 

The SRA conduct rules require solicitors to treat “colleagues fairly and with respect”. In addition to employees, “colleagues” includes contractors, consultants, barristers and experts. There is also a positive obligation on managers (which includes partners, members and directors) to “challenge” behaviour in others that does not meet this standard, such as intervening immediately where feasible, raising concerns quickly with the person who behaved inappropriately and reporting the incident to another appropriate individual. 

The SRA conduct rules for firms and the SRA guidance make it clear that law firms must "do everything they reasonably can" to protect those who work for and with them from harassment, bullying, discrimination and victimisation.

Where there is a serious incident, this should be reported to the SRA in accordance with its enforcement strategy. Behaviour that could reasonably be seen as intended to harass, bully, belittle, intimidate, undermine, or take advantage of colleagues will be viewed as more serious. Factors that the SRA will consider when assessing the severity of the behaviour include power imbalances, for example the respective seniority of those involved. The guidance also notes that solicitors with protected characteristics (including ethnicity, disability, sex and sexual orientation) appear to experience higher levels of unfair treatment at work. Where individuals have such characteristics or vulnerabilities this will be relevant to the seriousness of the unfair treatment, particularly if this appears to have been a factor in the behaviour complained of.

So how does this all relate to sexual harassment?  It is clearly unacceptable from a regulatory perspective, and partners have a duty to challenge any behaviour and report the incident to another appropriate individual (most likely the COLP) as a minimum.  In addition, firms should be doing “everything they reasonably can” to protect their employees and colleagues; placing a positive obligation to safeguard staff and take steps to prevent sexual harassment.

New legal proactive duty on employers from 26 October 2024

New legislation will apply to all employers (including law firms) and will strengthen the protection from sexual harassment of employees at work.  It does so by introducing a new pro-active duty on employers, from 26 October 2024, to “take reasonable steps” to prevent sexual harassment. The intention of the legislation is to shift the focus from redress to prevention and protection, which adds to the onus on employers to take proactive steps. 

EHRC draft guidance on the new duty

Indeed, the Equality and Human Rights Commission (EHRC) has now published draft guidance on this new duty which emphasises that this is an anticipatory duty. Employers should not wait until an incident of sexual harassment occurs before taking action. Instead, they should undertake risk assessments to identify situations in which their workers may be subject to sexual harassment and take action to prevent such harassment taking place.

The guidance also makes reference to harassment by third parties – and whilst there is no direct legal protection for employees against third party harassment, as this was dropped from the final legislation, the guidance indicates that the new duty will require employers to take reasonable steps to prevent sexual harassment by both their own workers and third parties. Law firms should be mindful to protect staff from sexual harassment, not just in the office but also at work related events and from clients and customers.

Enforcing the new duty 

There will be a corresponding new compensation uplift of up to 25% for breach of the new employer’s duty to prevent sexual harassment. Employees won’t be able to bring a claim for breach of the duty as it won’t be a standalone claim. However, where an employee’s claim for sexual harassment succeeds, the Employment Tribunal will then consider applying an uplift to any overall compensation awarded if it also considers there has been a breach of the new duty. 

If sexual harassment claims are successful, the compensation payable to employees can be substantial, even without the impending threat of an uplift. For example, in Tahir v National Grid UK Ltd [2023] an Employment Tribunal awarded over £350,000 in compensation to an employee who resigned after suffering sexual harassment. 

Linking the new duty with regulatory obligations 

But, does this actually place any additional obligations on law firms in practice, over and above their regulatory obligations? They already have the obligation to “do all they reasonably can” to prevent harassment (SRA Guidance on the workplace environment). That looks potentially wider than the new legal obligation.  

The key point perhaps for law firms, therefore, is that if an employment tribunal were to find that the law firm had failed to “take reasonable steps” to prevent sexual harassment, that looks like there is going to automatically be a regulatory consideration which needs to be had.  

As with other employment tribunal claims, and allegations and complaints which relate to workplace culture issues, law firms should be considering their regulatory reporting obligations at all times.

EHRC investigations

The EHRC currently has the power to investigate breaches of the Equality Act 2010 and to take enforcement action. From 26 October 2024, the EHRC will also have the power to take enforcement action where employers (including firms) breach the duty to “take reasonable steps” to prevent sexual harassment by their own workers or third parties. So, in the same way that a tribunal’s finding that the law firm had breached this new duty would lead to consideration of regulatory reporting obligations, if the EHRC was to find the firm had breached this duty, regulatory considerations would arise. 

Action points: 4 steps for law firms to take

Now that the EHRC has published its draft updated technical guidance on sexual harassment to reflect the new duty on employers, law firms should take steps to ensure compliance with their regulatory requirements and the new duty, and to foster an inclusive and positive workplace culture. 

This involves firms undertaking a comprehensive review of their current policies and procedures, training and workplace culture and implementing practical measures to help adopt a proactive stance against sexual harassment and other negative workplace behaviours.  Agile policies and procedures are needed to address and demonstrate compliance in this area at both an individual level (for managers) and a firm level.

Step One – Review and Understand What you are Currently Doing 

• Gather all policies that you have which are relevant to preventing sexual harassment. This will include your equal opportunities policy, bullying and anti-harassment policy, whistleblowing policy, data protection and disciplinary policies. 
• Gather all training that you currently do in relation to these policies, and any programmes you use for communicating them (such as posters, internal newsletters, staff meetings).
• Gather all policies and programmes that you have in relation to reporting. This will include formal reporting channels and telephone hotlines run by third parties. 

Step Two – Consider and Review your Current Culture and Risk Points

• What is your current culture?  
  • Review what claims, grievances and issues you have had, perhaps over the last three years.  Do you carry out leaving interviews and can you review those?
  • Do you do culture or engagement surveys?  Do they ask relevant questions?
  • How are complaints recorded, investigated and resolved?  Do they follow your policies? Do they adequately observe confidentiality and support individuals involved? 
• Do you need to know more about your current culture and any issues?
  • Can you conduct leaving interviews or add questions around this area?
  • Can you do engagement surveys or, if you already do, can you add questions relating to ‘speak up’ culture?
  • Can you do a culture survey that is specifically related to sexual harassment?
• What actually is your risk?         
  • What are the risks of sexual harassment occurring, and where and when may it be more likely to occur?
  • Do you have any learning from issues which have arisen in relation to, for instance, relationship at work policies, alcohol consumption policies, work trip policies, social event policies?
  • What is the best way of preventing the risk of sexual harassment, as opposed to simply reacting to issues as they arise?

Step Three – Put in Place an Action Plan 

• Do you need to update your policies? 
  • Do they cover social media and out of work scenarios? 
  • Are your reporting mechanisms (both internal and external) sufficient? 
  • Have you considered publishing your policies on your external facing website? 
  • Should you have a standalone sexual harassment policy?
• Do you need to update your training or awareness or consider a campaign on this area? 
  • Has everyone within the organisation received specific training on sexual harassment? Has this been done recently?
  • Is your training sufficiently targeted at the right levels of staff and tailored by role?  
  • Does it include situational training and training for those who witness sexual harassment? 
• Do you need to improve the way you communicate your policies to drive a zero-tolerance culture regarding harassment?  
  • Have you considered appointing a senior manager as a workplace champion to assess feedback on whether policies and training are working?
  • Have you provided training to the HR team and investigating managers on how to provide support and investigate complaints in a trauma-informed manner?
  • Have you considered appointing other (more junior) staff within the organisation as points of support for those who lodge sexual harassment complaints.
• What can you do to review your culture?  Can you update leaving interviews, engagement surveys and think about a culture audit?
• Can you do a risk assessment?

Step Four – Plan Timing and a Rolling Review

Register for our forthcoming client webinar 

Clyde & Co will be hosting a webinar to explore culture in law firms on Thursday 12 September 2024. To register for this event, please click here.

Get in touch for advice

We can provide bespoke advice tailored to your firm’s needs. Our approach is not just about meeting the new requirements; it’s about fostering a zero-tolerance environment that drives positive change. Our goal is to help you create effective resolution pathways, pinpoint risk areas, and ultimately cultivate a superior workplace culture.
 
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