The information below is to help those understand their workplace obligations and how to comply with them. Everyone should have regard to it when exercising their workplace functions.
Purpose of this guidance is help:
- Understand your approach to allegations of sexual misconduct, what behaviours are unacceptable and when they might become a legal matter.
- Identify the boundary between an individual’s behaviour in their private and professional life, where they might overlap and why the distinction is important.
- Understand expectations that the workplace will promote and ensure a workplace culture that does not tolerate sexual misconduct.
- Understand obligations both when investigating these matters internally and when reporting them externally.
This guidance will therefore:
- Provide clarity to those of what is expect from them when dealing with sexual misconduct allegations.
- Assist those who must make decisions about reporting possible sexual misconduct.
- Assist complainants who are thinking of reporting allegations of sexual misconduct.
Sexual misconduct
A person must not abuse their position to initiate or pursue an improper sexual or emotional relationship. At all times individuals must make sure that their conduct preserves and justifies colleagues trust in them, as well as the public’s trust in the profession. That trust is undermined by the exploitation of a professional position for sexual purposes.
Sexual misconduct might take place in the workplace and be directly relevant to an individual’s professional life and their professional standing. Sometimes however, the line between an individual’s private and professional life can begin to get blurred, making judgments about whether any conduct constitutes a regulatory matter more difficult.
The closer any behaviour or alleged wrongdoing touches realistically upon the individual or reflects how they might behave in a professional context, the more likely it is that the conduct may impact on the individual’s integrity or trust in the profession.
Sexual misconduct might not directly relate to an individual’s work, or the work being done, it might also happen entirely outside of work and not directly relate to the workplace of the individual but might be so serious that it will be considered to raise an issue.
Some sexual misconduct allegations totally removed from the workplace might still be so serious that they damage public confidence in a profession and therefore might still amount to professional misconduct. Examples include criminal convictions for sexual offences as well as serious non-consensual sexual touching even where no criminal proceedings are planned, current or concluded.
Proximity
The closer any behaviour is to an individual’s profession the more likely it is that the conduct might impact on or call into question the integrity of the individual or the wider trust in the profession – and therefore more likely the need for action.
Seriousness of the conduct
A general approach to gravity obviously depends on the allegation if a complaint is received about unwanted comments or touching (as an example) and there is evidence of a sexual motivation then the misconduct becomes more serious. For example, someone being overly friendly and putting an arm around someone’s waist might be objectionable to an individual but is not necessarily serious enough for us to take regulatory action. However, if the touching were intentionally on the bottom or breast it would obviously be more sexualised and therefore more serious.
The criteria listed below are all relevant to an assessment of gravity. However, the overall seriousness of the sexual misconduct is informed by all the circumstances of the case including the proximity to the workplace as well as the following considerations:
- Did it involve physical contact? For the misconduct to be sexual the touching must obviously have a sexual element to it or be accompanied by sexualised language. This is difficult to describe in general or abstract terms – but the type and place of touching, level of intimacy and duration will all be relevant.
- Did it involve violence, exploitation, threats, malice, coercion, pressure, manipulation, victimisation, harassment, discrimination, intimidation, influence, breach of privacy or bullying? These are regarded as significant aggravating factors. Some examples include:
- sexualised conduct accompanied by threats (amounting in effect to blackmail) if the conduct is reported to line managers.
- suggesting or demanding that junior staff wear certain attire, such as high heels, fewer items of clothing or more revealing clothing or make up.
- intentionally plying someone with extreme or significant quantities of alcohol which might suggest that it is being done to lower both physical and emotional resistance while also reducing their capacity to clearly recollect events.
- use of internships and traineeships, future work, or access to clients (or implicit/explicit offers of such) as inducements, or the threat of their withdrawal, to manipulate.
- physically cornering or obstructing a complainant to prevent exit or escape.
- giving sexualised gifts, such as sex toys.
- comments about sex life (of either party).
- demeaning, embarrassing, or criticising the other person to third parties (by reference to some factor associated with their gender or sexual orientation). For example, ‘rating’ staff and/or commenting on their personal appearance and grooming habits or vice versa.
- Was the conduct repeated? The frequency can indicate a pattern and can impact on seriousness and insight. Did the conduct persist despite warnings to stop? This will be considered as a significant aggravating factor.
- Was it directed at a junior colleague or vulnerable individual or more than one individual?
- Was the regulated person aware or should they have been aware that their conduct was unwelcome?
- Was it spontaneous or planned? A sequence of conduct not only reflects gravity, but also undermines a defence of spontaneity.
Sexual misconduct is more obvious when it involves physical touching. However, comments by themselves can also amount to sexual misconduct. It is possible for comments to be implicit or veiled or deliberately ambiguous, yet objectionable. In such situations we will consider:
- The nature of the comments – were they overtly sexual in nature?
- Did the comments also involve gestures? If so, what meaning did any gesture convey (or intend to convey).
Criminality of the conduct
Where a report is received of alleged sexual misconduct which could amount to a criminal offence, it must be considered whether it is appropriate to make a report to the police.
If a criminal conviction is already recorded and that finding is relied on and any judicial sentencing remarks when taking any further action. A conviction for an offence that appears limited to a person’s private life might still raise professional misconduct. However, criminality is not a pre-requisite for make a finding of sexual misconduct.
Anyone is entitled to investigate possible misconduct even if no criminal proceedings are planned, current or concluded. This could be because the alleged misconduct could not amount to a criminal offence but might nevertheless be serious enough to necessitate action, or because the prosecuting authorities have decided not to proceed. Even after such a decision, or an acquittal, it might still be appropriate for an investigation because professional misconduct is a wider concept than the criminal law.
Consent
Just as consent is often relevant to criminal allegations of sexual offences, so it is sometimes relevant to complaints of sexual misconduct. But it should be recognised that assessing the issue of consent is very complex and can be hard to determine. It can be affected by such factors as relative seniority/inferiority, vulnerability, intimidation, and intoxication. In some cases, these can reduce and even remove the capacity of someone to give meaningful consent. Consent can also fluctuate from time to time and from context to context.
Vulnerability
Vulnerability (of the alleged victim) might be a relevant factor. Although it is well established that vulnerability can be an aggravating feature – attempting a definition is difficult. It can take many forms and might arise from an array of factors, present either individually or in combination. These include:
- Professional status (two parties of different seniority).
- Professional relationship (a professional can be unduly dependent on a client (for supply of work) or a client can be unduly reliant on a professional for effective advice/representation, especially in certain areas of law, and especially if the work is publicly funded or pro bono because alternatives might be less readily available.
- Fragile health (physical or mental).
- Disability.
- Age.
- Sexual orientation.
- Emotional, financial or career dependency.
- Temporary vulnerability, such as intoxication (by alcohol or drugs)
- Isolation or impaired access to effective support or remedies.
- Cultural vulnerability.
Intoxication
Being intoxicated is often raised as a defence to allegations of sexual misconduct. Depending on the context intoxication could aggravate or mitigate the behaviour. It is never a defence to an allegation.
Expectations in the workplace
Specifically clarify your expectations in ensuring the wellbeing of all staff. Foster a culture of zero tolerance of sexual misconduct, where staff feel that they can speak up freely and report matters.
Any allegation of sexual harassment in the workplace presents an issue and will need to investigate sensitively and appropriately in compliance with their legal and other obligations.
You will need to consider difficult and often sensitive issues (such as a non-supportive complainant or contradictory evidence from different parties) when dealing with issues of this nature. However, workplace should have robust procedures and policies in place to properly manage and investigate complaints of sexual misconduct when they are made.
The following examples of sexual misconduct and the different contexts within which it can occur help to illustrate how these different factors can interplay.
These are actual examples – some of the many that are reported, and they are clearly unacceptable.
They are not exhaustive but help demonstrate behaviours which are not acceptable in a professional setting, and which could constitute conduct related to sexual behaviour which we will treat as raising a regulatory issue.
1: Unwanted sexual attention in the workplace
This unfortunately can be an all-too-common occurrence in the workplace. It usually involves sexualised comments which the perpetrator often seeks to justify – and might genuinely regard – as ‘flirting’ or ‘banter’ or even ‘complimentary’.
Examples are comments indicating sexual interest: ‘You are sexy’ or ‘I find you attractive’.
More serious are distasteful sexualised comments: ‘You could come over here, sit on my knee and see what pops up.’
The most serious comments are overtly sexually specific remarks about sexual activity or intimate parts of the body. If rebuffed, the comments may be aggravated by direct or veiled references to the speaker’s seniority and/or the imprudence or futility of any complaint.
If a complaint is made and the management backs the perpetrator it might lead the management to try to persuade or pressurise a complainant to resolve the matter by entering into a settlement agreement.
Sexually offensive, derogatory, or explicit comments about a complainant can also be made to (or overheard by or copied to) third parties. Of critical importance is the nature and context of any sexualised remarks, including the demeanour of the perpetrator and the effect on any audience. A particular context can transform what would normally or otherwise be a neutral, ambiguous, or injudicious comment into something improper and offensive.
More serious is unwarranted and unwanted touching (assault). Typically, the perpetrator seeks to justify (and might genuinely regard) the touching as consensual or accepted or, at least, not wholly unwelcome. But the complainant thinks differently.
In all of the above situations it will be necessary to consider whether the words or actions were abusive or simply awkward, clumsy and unwise and whether the person knew or should have known that the words or actions were unwanted or made the person feel uncomfortable. This depends on all the surrounding circumstances. The more unwarranted, intimate, and persistent the touching, the more likely it is to be regarded as abusive.
In the workplace, the boundaries are clearer and stricter than in a social setting.
2: At a workplace social event
This is another common situation giving rise to complaints of sexual misconduct, both consensual and non-consensual. It also illustrates further the blurring of the line between professional and private life.
The link to professional life is weakened if a firm social event, which has been organised at one venue, moves on to another as the night progresses.
For example, attendees move to a restaurant or pub and/or the parties break away from a wider group of colleagues and move to a hotel room or home. However, the link is not always broken by such a transition. The working relationship remains the origin and the context – even if the misconduct itself takes place in other premises.
The same is true of residential (including overseas) events attended in a professional capacity which involve a mix of both work and social elements.
There may also be a strong connection with professional life where trips or holidays are arranged by or through a company using a social committee and/or work communications systems. Sometimes the company might fund part of the cost. The practice connection is stronger if an off-premises professional event (such as a conference) is organised by the parties’ own firm, regardless of who attends. A trip away from the workplace (including overseas) on firm business, such as visiting a client, is of course much closer to the normal working environment.
3: Consensual workplace relationship that becomes non-consensual
Sometimes a sexual relationship begins consensually but one party subsequently ends it. A complaint is prompted when the other party persists in the (now unwanted) sexual attention or seeks to revive the relationship by bullying or harassment or, in extreme cases where the professional relationship is unequal, by threatening adverse career consequences if the relationship is not revived.
As in other scenarios, abuse of an uneven/unequal power relationship (between professionals, clients, and social contacts) can be a common feature.
The abuse and misconduct might also involve either incentivising (by offering pro bono work or an internship or some other career advancement) or intimidating (by threatening career stagnation or regression) or even punishment (through poor appraisals).
4: Use of social media
Social media includes blogs, internet forums, content communities, business platforms such as LinkedIn and other social networking sites.
Expected standards do not change because communication is made through social media rather than by more traditional means. Increasingly, however, social media messages and content are another means by which sexual misconduct is perpetrated (and evidenced).
It is also another example of the way in which the line between professional and private life can be blurred.
The link to practice is clearly closer if use is made of a professional channel of communication, such as a firm’s email account/address or its networking/conferencing platform. But this is also true if the initial approach or ‘friending’ stems from some professional context – even a remote or indirect one, such as responding to a request for legal help on a Facebook community page.
Social media (including private messaging) must not be used to sexually harass, intimidate, or pressurise a colleague at work. Nor should such channels be used to, for example, make targeted sexualised comments about a colleague’s physical appearance (sometimes referenced to photographs) which the author might then try to minimise as ‘flirting’.
Although usually intended to have a limited audience (and separate from any professional platform), social media communications/postings might become more widely available, thereby causing distress and damage. If they do (or could), allegations of a breach of confidence might follow.
More detailed guidance
If the information has not answered all your questions about how to manage sexual harassment, then please feel free to contact us.