Following a steep increase in reports of sexual misconduct at work following the #metoo movement, the SRA released guidance on the issue to firms in September 2022 and made amendments to its Enforcement Strategy in February 2023 reflecting this. More than a year has now passed since the guidance was issued and as we head into the Christmas party season, with all of the blurred boundaries that can create, it is worth considering the impact of the SRA's guidance and how it has been put into practice in 2023.
2023 has seen a number of sexual misconduct cases reported. They vary from an associate who made a sexual gesture to a trainee solicitor at a Christmas party who accepted a rebuke from the SRA without referral, to a solicitor who touched a woman twice in a nightclub uninvited and was ordered to pay a fine of £30,000 by the SDT. A partner at a law firm who sang a vulgar song to a trainee and was recorded on a mobile telephone at a work social function was fined £23,000 by the SDT.
In a first for the SRA, Oliver Bretherton was struck off in June 2023 for non-criminal sexual conduct but it is not a surprise in circumstances where there were three complainants, more than 70 allegations proven and a 20 year age gap between him and his youngest complainant. There have been two further strike offs since Oliver Bretherton, with one involving covert images of a female colleague and another for communicating sexually with a person under 16 on Grindr. We can start to feel a shift to the way that the SRA has been threatening to approach these type of cases and that is that fines are no longer appropriate for any kind of sexual misconduct.
With the SRA now flexing their muscles, it will be up to firms to ensure robust protections are in place for staff and for leadership to set the tone and to ensure self-reporting of these issues especially given the "fair treatment" rules added to the Code of Conduct in 2023. These include an express duty on lawyers not to harass staff, to treat colleagues fairly and impose an obligation on managers to challenge behaviour that does not meet this standard. We understand that the SRA are already carrying audits of firms to ensure that they are taking steps to address these changes to the Code.
