#MeToo: Regulatory and disciplinary issues arising out of sexual harassment in the professional services sector
In 2017 the #metoo movement began to spread on social media. Although its meaning and ambit have evolved, it began as a means by which sexual harassment and assault in the workplace could and would be called out. Speakers: Ben Hubble QC and Clare Dixon.
Professional services may not have the glamour of Hollywood but, like many industries, it is not immune to problems of sexual harassment. Gender imbalance, power/status imbalance and, sometimes, a failure to appreciate that what might have been ignored in 1979 will not be in 2019, all feed into the problem.
The prevalence of the problem in the legal profession has come under particular scrutiny. In October 2018, the SRA stated that incidents of reported harassment had doubled in the previous seven months. In May 2019 (after our podcast was recorded), the IBA published a paper entitled “Us Too?” which set out its findings following the largest ever survey on bullying and harassment in the legal profession. 1 in 2 female respondents and 1 in 3 male respondents reported that they had been affected by bullying. 1 in 3 female respondents and 1 in 14 male respondents reported that they had been sexually harassed at work. Perhaps most shockingly (if not surprisingly) in 57% of bullying cases, and 75% of sexual harassment cases, the incident was never reported.
Greater awareness and action relating to sexual harassment and bullying has been accompanied by an increase in reports about the improper use of Non-Disclosure Agreements (“NDAs”). The SRA has recently published a warning notice and guidance on NDAs. Further, the FCA’s executive director of supervision stated that the FCA did not consider that “gagging orders” prevented an individual’s ability to blow the whistle to the FCA and that there had been instances where the FCA had found an individual not to be “fit and proper” on the basis of their non-financial conduct.
This podcast will look at sexual harassment from a regulatory point of view. Obviously it can have other ramifications (criminal, employment etc) but the focus of our podcast is going to be on how the various stakeholders who become involved when an allegation is made should respond and the regulatory consequences if they get that wrong.
In order to do that, we are going to address the following:
- What is sexual harassment?
- By reference to a hypothetical example: who are the relevant stakeholders, what are their rights and obligations?
- Investigation by the firm and reporting to the regulator – does one follow the other or should they be done at the same time?
- What are the problems and pitfalls of non-disclosure agreements?