How businesses should deal with sexual misconduct allegations

With a rise in complaints following the #MeToo campaign, Rachel Warren outlines the pitfalls for unwary employers dealing with workplace sexual harassment claims

The rise in complaints spawned by the #MeToo movement is something which employers are grappling with. Given the general shift in terms of the approach that is now expected from employers – together with widespread reporting of such cases in the press and the resulting harm caused by reputational damage – all businesses need to give careful thought as to how they deal with this issue. Two recent cases involving solicitors, both at large city firms, are of particular note in terms of the way in which professional regulators and the courts are approaching this issue. 

The first is the case of Gary Senior, a senior lawyer at city firm Baker McKenzie. The firm received a complaint that Senior had acted inappropriately with a junior lawyer by attempting to kiss her. 

An internal investigation was carried out, but the professional regulator, the Solicitors Regulation Authority (SRA), also became aware of the matter. As a result, regulatory proceedings were brought against not only Senior, but also Baker McKenzie, and the firm’s HR director. 

The allegations made against the firm and the HR director were that the internal investigation had not been carried out properly because they had allowed Senior to influence, or attempt to influence, the investigation. It was also alleged that they had failed to investigate effectively or independently; they had failed to share information appropriately within the firm, and that they had failed to report the matter to the SRA. 

Ultimately, the allegations against the firm and the HR director were not upheld. However, as part of the regulatory proceedings, many of the emails which had passed between those involved in the internal investigation were introduced into evidence, with excerpts being reproduced, word for word, in the final determination; a document which is publicly available. 

Although the findings were not upheld, the firm was criticised for the way in which the investigation was carried out. The tribunal making the decision said that there should have been a clearer and more independent process for the investigation of allegations such as this, and that those investigating should not have been so close to the person under investigation. 

The second case involved a solicitor called Ryan Beckwith. Beckwith was a partner at city law firm Freshfields Bruckhaus Deringer LLP. A complaint was made against him of inappropriate conduct by a junior lawyer who had since left the firm. 

The allegations related to an alcohol-fuelled evening in the pub, after work, which culminated in Beckwith and the complainant sharing a taxi home. Both had got out of the taxi at the complainant’s home where consensual sexual activity had taken place. 

The tribunal hearing the case determined that Beckwith was guilty of misconduct because he knew that the junior lawyer’s decision-making was impaired due to the amount of alcohol she had consumed. Beckwith subsequently appealed to the High Court which ruled in his favour, making the point that a professional regulator does not have jurisdiction over everything that happens in a professional’s private life and stating that ‘popular outcry is not proof that a particular set of events gives rise to any matter falling within a regulator’s remit’. 

While the Beckwith case emphasises the importance of dealing with these allegations fairly; as the Senior case, and the resulting press interest in both cases also show, it is crucial that businesses deal with allegations of sexual misconduct in a transparent, independent and efficient manner. 

Steps which employers can take to achieve this include engaging an independent person to carry out the investigation; ensuring that those involved in the investigation are both impartial, and crucially, being seen to be impartial regardless of the importance or standing of the person under investigation. It is also important that the process is recorded in writing, and that details of the ongoing investigation are not shared, particularly with the person the complaint has been made about. 

Those involved in the investigation should be mindful at all times that any emails created during the investigation could be produced for evidence in due course, and so the content of their emails should be carefully considered. Given the reputational damage which could result should the story come to the attention of the press, it may also be wise to put in place a PR strategy at an early stage. 

In addition to potential employment or professional regulatory proceedings, another important consideration for employers is that due to the nature of the allegations, criminal offences may have been committed. This means that when thinking about any potential legal proceedings which an employer might become involved in, there may also be the risk of the business being drawn into criminal investigation should the police become involved.

For all the reasons set out above, employers in all industries, whether regulated or not, would do well to remember that their actions in investigating allegations such as this, could end up being subject to scrutiny both in the courts and in the press. With this in mind they should act promptly upon becoming aware of any allegation of sexual misconduct; particularly in terms of taking advice at an early stage to try to avoid problems at a later date. 

Rachel Warren is legal director at Charles Russell Speechlys