SRA sexual misconduct guidance

On 1 September 2022, the Solicitors Regulation Authority (SRA) Issued guidance about sexual behaviour and the extent to which it may seek to regulate the private lives of professionals. The guidance has been published on the back of a number of high-profile cases involving alleged sexual misconduct and an increasing number of reports which it is currently investigating. In 2020 in Ryan Beckwith v Solicitors Regulation Authority [2020] EWHC 3231 the High Court gave important guidance on the extent to which a regulatory ought to be able to look into the private of those it regulates. The findings made against Mr Beckwith by the SDT were quashed by the High Court (see our blog here). The new guidance is welcome to the extent that professionals have a much clearer understanding of the types of behaviours that the SRA may seek to regulate.

What does the guidance say?

The term ‘sexual misconduct’ is used to describe sexual ‘behaviour’ which may raise a regulatory issue. Importantly, the SRA is clear that consensual sexual relationships between work colleagues will never be the subject of investigation or prosecution. The closer the behaviour is to the ‘workplace’ the more likely it is to form the basis of an investigation if an issue arises. However, it may happen entirely outside the workplace, but still form the basis for investigation. The most obvious example here would be where such conduct leads to criminal convictions but that would not be a ‘threshold’ test.

What conduct may form the basis for investigation by the SRA? 

• Abuse of position to pursue an improper sexual or emotional relationship with a client or colleague
• Serious non-consensual sexual touching (in any context)
• A training principal making sexually suggestive comments to a trainee
• Intentional touching on the bottom or breast
• Suggesting junior staff wear certain attire
• Intentionally plying someone with alcohol
• Giving sexualised gifts such as sex toys
• Making comments about sex life
• ‘rating’ staff based on appearance

What conduct may not form the basis for investigation by the SRA?

• Inappropriate sexualised comments or gestures at a party unrelated to work
• Commenting on someone’s personal appearance in private life
• Flirtatious conversation in a bar
• Being over-friendly and putting an arm around someone’s waist
• Consensual sexual relationships between colleagues

What Principles would be potentially breached?

Principle 2 – duty to uphold public confidence in the profession

Principle 5 – duty to act with integrity

Principle 6 – the duty to act in a way which encourages equality, diversity and inclusion

Comment

The boundaries between a solicitor’s professional and personal lives have become increasingly blurred as the SRA seeks to battle with increasing scrutiny over sexual harassment in the workplace. This guidance is accordingly welcome although it serves to highlight the disparity in seriousness of such offences and the ongoing need for each case to be carefully examined on its facts. Thus, the earlier announcement that sexual misconduct cases will be referred to the SDT rather than attracting financial penalty save in ‘exceptional circumstances’ is difficult to reconcile with the obvious difficulties highlighted here.

A full copy of the guidance can be found here.

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