Sex and the City: the right to a private life in the workplace

Just over a year ago, the High Court published its landmark decision in Beckwith v Solicitors Regulation Authority [2020] EWHC 3231 , which provided much needed guidance on the extent regulators could inquire into the private lives of those that they regulate.

In F v Solicitors Regulation Authority (1 November 2021)*, a trainee solicitor appealed against a decision by the Solicitors Regulation Authority (SRA) to ‘rebuke’ him based, inter alia, on the fact that the SRA had wrongly distinguished the judgment in Beckwith and hence sought to test the application of that judgment at the Solicitors Disciplinary Tribunal (SDT).

F had handed a Christmas card to another trainee solicitor ('KB') at their firm as they were leaving work which included the following words: “I had thought of getting you a moulded vibrator with custom ‘drizzle’ and ‘dollop’ functions, along with the Haribo, in order to give you a proper ‘buzz’ for Christmas. Personally, however, I thought you’d prefer the 3rd action - “face painting tsunami of vizz’. However, I thought that would be too outrageous even for me”. The trainee solicitor who received the card reported the matter to the firm and the firm reported the matter to the SRA although she did not provide evidence in the subsequent investigation. It was F's case that this type of conversation had been foreshadowed between them in flirtatious exchanges and, although reprehensible from a personal point of view, it was a private matter unrelated to work and hence SRA Principle 6 was not engaged.  Reliance was place on the dicta in the Beckwith judgment on the ECHR Article 8 (right to a private life) issue.

Following an investigation, the matter was referred to an Adjudicator at the SRA who found that the card placed F in breach of (then) Principle 6 – you must behave in a way that maintains the trust the public places in you and in the provision of legal services. Breach of integrity (then Principle 2) was not alleged against him. It was the Adjudicator’s decision to ‘rebuke’ him. A ‘rebuke’ is a sanction which can be imposed by the SRA without referral to the SDT.  An appeal against a decision by the SRA lies to the SDT under section 44E Solicitors Act 1974. The SDT has jurisdiction to interfere with a section 44D decision of an adjudicator in circumstances where it considers the decision to be either:

• Wrong; or
• Unjust because of a serious procedural or other irregularity.

Accordingly, the bar is a high one for any potential appellant upon whom the burden lies.

The important aspect of the ruling by the Adjudicator was as follows:-

“6.15 ….I am satisfied that [F]'s conduct was in relation to his activities carried out in the office, then this means that [F] needed to meet Principle 6.” “6.16 [F] seeks to rely on the decisions in Beckwith v Solicitors Regulation Authority and other case law as authority to find that he did not breach Principle 6. Beckwith was concerned with Principle 6 in circumstances where the solicitor was acting outside of practice”.

The SDT decided that the decision of the Adjudicator was wrong and quashed the decision to rebuke F. It found that the focus of the Adjudicator on the location/geography of the incident placed it on an “incorrect footing”.

The SDT ruled that Beckwith “required an analysis on behalf of the Adjudicator as to whether Principle 6 was engaged in this case, by considering the substance of the events, and considering whether as a result Principle 6 was engaged. This was a substantive analysis that could not be satisfied by a decision of regulatory engagement based on location of event, rather than whether Principle 6 applied to the facts”.

The judgment continued: “The ‘and’ in Principle 6 linked public trust with the provision of legal services. In [the Adjudicator’s] decision there was nothing to suggest that [she] had considered whether there was evidence which linked the Appellant’s giving of the Christmas card, to the provision of legal services, as required by Principle 6…Given that the Beckwith case clearly stated that an analysis of conduct needed to focus on identified breaches of obligations set out in the handbook, and given that reliance on Principle 6 was the only basis for the case against the Appellant, the Tribunal considered that as a matter of law, the requirements of the Beckwith dicta were not satisfied”.

Commentary

The judgment is an important recognition that relationships between colleagues at work can retain their privacy provided they are not characterised by criminality (harassment or abuse) or any element of abuse of power. Importantly, in this case the SRA had conceded that no offences had been committed. Thus, whilst F's conduct was reprehensible from a personal point of view, which he readily admitted, the communications were private and the SRA had no jurisdiction to intervene. It is probably important to recognise that had F held a position of responsibility over KB then the balance of convenience may have weighed against him.

*The name of the respondent in these proceedings has been anonymised at their request.

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