Has the SRA confused or clarified its position on sanction in sexual misconduct cases?

Published 24 mayo 2023

The #metoo movement has led to the SRA, like many regulators, having to address sexual misconduct issues in the workplace and the impact was felt immediately in the legal profession.

In 2018 there were 251 reports of alleged sexual misconduct made to the SRA compared to just 30 complaints of this nature in the preceding five years.

In 2019, the SRA set up a specialist team, internally, to deal with such cases. They had 117 ongoing investigations at that time which increased to 140 in April 2021.

There have been a few high profile decisions, including that against Ryan Beckwith, who successfully appealed in the High Court the fine that had been imposed for sexual relations with a colleague, and Gary Senior, the Baker McKenzie partner, who was ordered to pay a fine of £55,000 for attempting to embrace and kiss a junior colleague and then influence the internal investigation.

What the decisions show is that the line between a person’s professional life and private life can become blurred which has led to uncertainty regarding the Regulator’s remit.

In an attempt to clarify its position the SRA has issued guidance culminating in the latest published in September 2022 which confirms that the SRA expect firms to foster a culture of zero tolerance of sexual misconduct. Amendments have been made to the SRA’s Enforcement Strategy which came into force on 15 February 2023 reflecting this. The SRA consider that some behaviours demonstrated by individuals - such as those relating to sexual misconduct, discrimination, and non-sexual harassment - are unsuitable for a financial penalty, except in exceptional circumstances.

In principle, therefore, all sexual misconduct cases ought to be referred to the SDT, but what has been happening in practice?

2023 has seen a number of sexual misconduct cases reported. We have seen:

• an associate who made a sexual gesture to a trainee solicitor at a Christmas party who accepted a rebuke from the SRA;
• a solicitor who touched a woman twice in a nightclub uninvited was fined £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;
• a solicitor convicted of attempting sexual communication with a child under 16 was struck off; and
• we await the sanction imposed by the SDT in the case of the partner who faced allegations of sexual misconduct involving an 18 year old paralegal with interest.

To date, other than the respondent who had committed a criminal offence, the cases have either not been referred to the SDT or the SDT has ordered a fine, meaning that the cases fall into the exceptional circumstances category identified by the SRA.

We expect more sexual misconduct cases to be heard in the coming months which we hope will provide clearer guidance on sanction for the profession in what is such a sensitive area to regulate.