Against the backdrop of the #MeToo movement, there’s a much greater willingness on the part of victims of bullying, harassment and other forms of workplace misconduct to publicly call out such behaviour. Companies and partnerships must do all they can to demonstrate:
- A supportive working environment for all staff; and
- A zero-tolerance approach to misconduct.
Here we look at some of the ways your partnership can proactively reduce the potential for partner misconduct to harm colleagues and damage your firm’s reputation. As we’ll see, creating an environment where partners and employees feel safe and protected is more than a tick-box exercise. It’s about creating a partnership-wide culture of respect where no individual feels threatened about raising misconduct issues against a partner.
PUTTING THE RIGHT POLICIES IN PLACE
If you haven’t already done so, now is a good time to comprehensively review your partnership’s internal procedures relating to partner misconduct. Is your firm in a position to deal with any complaint in a constructive and co-ordinated way?
Certain matters relating to conduct may be covered in the partnership agreement. However, it’s also useful to create transparent policies that apply equally to all staff, that all staff are aware of and can rely on. Some questions to consider include:
- Are limits on accepted partner behaviour clearly defined? The risk of alcohol abuse for example, and the part it can play in sexual misconduct should be highlighted.
- What is the partnership’s policy on workplace relationships?
- Is there an internal protocol regarding the use of messaging apps such as WhatsApp? These can be the source of casual and inappropriate language. Many partnerships now restrict staff communication to more formal platforms such as company email.
- Have you made provision for partners to be trained on issues such as discrimination and harassment?
- What penalties will a misbehaving partner face for breaching the relevant standards?
- Do all staff know who they can complain to confidentially?
- Are there clearly defined procedures to follow in the case of a complaint of partner misconduct?
HOW DOES A PARTNERSHIP DEAL WITH MISCONDUCT ALLEGATIONS?
When a complaint is made – for example that a partner has sexually harassed a member of staff – the policies you’ve put in place should immediately kick in. Review the partnership agreement and any ancillary documentation to establish what they say about the investigation process. If there is any potential for criminal liability to flow from the type of complaint that has been levelled against a partner, the police may already be involved. If they are not you should take urgent steps to inform them of the allegations.
You may also be required to inform any external regulatory body of the investigation. Many professional bodies, including the Solicitors Regulatory Authority (SRA), are becoming much more actively involved in cases of partner misconduct. Specifically the SRA has announced that it wishes to increase the number of sexual misconduct cases it prosecutes and to impose more than just financial penalties on partners found guilty of sexual misconduct.
The investigation must be carried out fairly. This means observing confidentiality and data protection rules. It may also require offering support to the alleged victim and similar support to the partner against whom the complaint has been made.
When a decision is reached, the sanctions to impose must be carefully considered. Will the partner be immediately expelled for example, or will some other penalty be imposed? The partnership must also address the issue of how to deal with the victim, for example by offering counselling.
COMMENT
It should be clear that comprehensive steps must be taken by partnerships to ensure they minimise the possibility that partner misconduct will harm individual members of staff and damage the firm’s reputation.
The High Court ruling in November 2020 involving a partner at a large City firm is noteworthy. It demonstrates the fine line that exists between professional and private life in sexual misconduct cases. The court overruled the Solicitors Disciplinary Tribunal (SDT). The SDT had found that the partner had breached the SRA’s code of conduct by having drunken sex with a junior lawyer at the firm. While the High Court found the partner’s conduct ‘inappropriate’, it decided that the conduct did not amount to an abuse of a position of seniority or authority.
Some commentators have said the High Court decision has muddied the waters somewhat in terms of what amounts to a partner’s sexual misconduct and what the sanctions for any such behaviour should be. The SRA’s hands-on approach to this area – it currently has 140 open sexual misconduct cases – is sure to provide welcome clarity in due course.
CONTACT US
For advice on partnership law and partner misconduct please contact Shubha Nath at Nath Solicitors on 44 (0) 203 983 8278 or get in touch with the firm online.
