What is defined as harassment in law firms is evolving fast and a telephone call or text that was previously thought innocent might now be considered to be inappropriate, experts have warned.
They advised law firms to have in place procedures for when harassment complaints are made, including designated ‘buddies’ for affected individuals to talk to, amid the confidentiality that should shroud investigations.
In a podcast from the Professional Practices Alliance, hosted by City employment law firm CM Murray, the issue of sexual harassment complaints within professional services firms was discussed under the banner #metoolaw one year on – a reference to the movement to expose sexual harassment begun in the wake of the Harvey Weinstein scandal.
Nick Vamos, a partner at commercial litigation and crime boutique firm Peters & Peters, said that when thinking about risk, firms should be aware that “even compared to 12 or 24 months ago the range of conduct that could be considered as either harassment or criminal conduct is far wider” – such as “phone calls, texts, unwanted visit, things that people just wouldn’t even recognise as causing alarm or distress or inappropriate and now they are”.
CM Murray partner Sarah Chilton, an employment and partnership law specialist, said a key problem was a failure to identify whether a particular act was harassment when there was no physical contact.
A “power imbalance” was often a feature, as was alcohol, which were also exacerbated by work pressures and late working.
She advised firms to have a plan in readiness for partners or employees being the subjects of complaints – including guidelines such as preventing retaliation against the complainant, using an external investigator, maintaining confidentiality, and supporting the individuals affected, both alleged perpetrators and victims.
Ms Chilton suggested also having designated ‘buddies’ for affected individuals to talk to, amid the confidentiality that should shroud investigations.
She said firms should review their “working and social culture” to determine whether anything was “providing breeding grounds for harassment”, such as alcohol consumption at office events.
Iain Miller, a leading regulatory specialist solicitor at Kingsley Napley, pointed out that the Solicitors Regulation Authority (SRA) would consider it a conduct matter if senior management chose to keep a harassment complaint under wraps when HR proposed investigating it.
Once a harassment investigation was underway, the SRA should be given the facts, and might potentially contact the individuals involved during its own investigations.
Mr Vamos said that if criminal charges were brought, it may be necessary for a firm to adjourn disciplinary investigations until the criminal case had run its course.
However, he stressed both investigations “don’t bind each other”, adding: “Just because a criminal case… is not taken further, it’s not an indication that they won’t be… found guilty in a disciplinary context. They could be exonerated in one context and still found culpable in the other.”
He continued that firms should not be “inhibited” in the way they investigated just because criminal charges may be pending, but they should conduct them properly and document them carefully. The risks of prejudicing a subsequent criminal investigation were “easily overstated”.
Mr Miller said that while the SRA believed it was perfectly proper for a law firm to enter into confidentiality agreements – or non-disclosure agreements (NDA) – with employees, it was vital they did not interfere with a desire to expose harassment, and should not be “overly prescriptive”.
He would be surprised if Parliament did not legislate in some way that “would impact on the use of NDAs” in the next year or so.
Meanwhile, MPs on the women and equalities committee heard last week that some lawyers advising on NDAs were ignoring their other professional duties so as to pursue the interests of their clients.
Professor Richard Moorhead, professor of law and professional ethics at University College London and a special adviser to the committee on its inquiry on the use of NDAs in discrimination cases, said that, as a generalisation, “not enough lawyers understand that they have to balance the public interest in the administration of justice and the protection of the rule of law with their client’s best interests” when drafting NDAs.
“They tend to prioritise the client’s best interest,” he said.
He added: “In relation to NDAs, they have to get within reason what the client wants, but they also must not take advantage of their opponent, particularly in the situation where they are acting for an employer against an employee who may or may not be represented…
“If you put a clause into a contract that is plainly unenforceable, I would regard that as taking advantage. It could also be behaving without integrity, etc.”
Committee member Jess Phillips MP highlighted a call by leading consumer law firm Slater & Gordon to ban “the use of more egregious clauses such as requiring an employee to withdraw the allegations”.
Professor Moorhead agreed. “I have seen a number of agreements with clauses like that and other kinds of clauses, some of them well known, where the clauses are deliberate attempts to stifle improperly the revealing of misconduct by employees in organisations.
“They are probably criminal, and they are probably in breach of professional rules on misconduct.”
Professor Moorhead praised the efforts of the Solicitors Regulation Authority on NDAs, though noting that “enforcement is absolutely critical here”, and described the Bar Standards Board’s decision not to issue guidance like the SRA as “slightly strange”.
He added: “The Law Society has issued some guidance. I am not very impressed with [it]. It is rather one-sided and weak. It should withdraw that or certainly revisit it.
“It tends to act as cheerleader for a certain view of what lawyers as businesses want, rather than more broadly in terms of the public interest, and that is a shame and to its long-term detriment. It could do more.”
There was support among witnesses for standard settlement agreements and confidentiality clauses. Professor Moorhead said this could “reset the balance back towards something that is much more modest and much more sensible in terms of the scope of NDAs”.
Other witnesses expressed concern about the way some lawyers operated. Sue Coe, senior policy officer at the TUC, said “it has been suggested that clever lawyers will find ways, if particular clauses are banned, of beefing up other clauses”.
She described NDAs as “a very lawyer-driven process”, adding: “We would like to see explicit statements in settlement agreements around employees not being limited from seeking therapeutic support or legal advice and also clear statements explaining exactly what the scope is in clear terms.”
Debbie Alder, director general of human resources at the Department for Work and Pensions, said the wording in NDAs was “normally lawyer to lawyer”, leaving it “slightly impenetrable even to HR practitioners”.
She continued: “This could be one of the lines of inquiry for the committee to look at. If you do have them in exceptional circumstances, do you have standard wording that is clear and that you can help support, as an employer or a local solicitor or whatever, and explain in a consistent way?”
Ben Willmott, head of the public policy team at the Chartered Institute of Personnel and Development, argued that legal advisers giving advice on settlement agreements should also be required to advise on the terms of a confidentiality clause within that.
“We also think they should be asked to sign a statement certifying that they have given advice on the settlement agreement and the terms of the confidentiality clause.
“The other thing is that we think there is a case for advice to be given by legally qualified advisers who are subject to oversight from a body such as the SRA, which can ultimately disqualify them from practice if they are found to have breached their professional standards.
“There are things around legal advice that could happen to make things more rigorous.”
Interested in this topic? Check out the Legal Futures Masterclass on NDAs, Harassment and Whistleblowing. 27 June 2019, London.