Misconduct matters

For many of us the Christmas party season is a time to kick back and enjoy celebrating with colleagues you don’t get to see socially all that often, particularly with hybrid working being the norm. However, as compliance officers for legal practice (COLPs) will know, it is also a challenging risk management exercise. It can be tricky navigating all the variables surrounding firm events involving alcohol – not to mention the additional risks of what happens at after parties and in taxis on the way home.

Background to sexual misconduct

Recently, Harriet Harman KC’s Independent review of bullying, harassment and sexual harassment at the Bar – published in September – recommended that: “The sanction for failure to report serious misconduct for those in positions of seniority should be a suspension. The greater the knowledge and the greater the level of seniority, the greater the period of suspension.”

Although directed at the Bar Standards Board (BSB), a version of this recommendation may find support with policymakers at the Solicitors Regulation Authority (SRA), given its direction of travel on workplace culture.

There have been some recent cases that will help identify how COLPs should approach issues of concern, but before we dive into the discussion – and for context – the SRA has now prosecuted many cases of alleged sexual misconduct and agreed several lengthy suspensions. Where cases have been contested the SRA has had more mixed success, frequently resulting in fines or shorter suspensions where misconduct is found.

It is notable that where allegations of misconduct were not taken forward or were ultimately not proven, they still had an instantaneous and devastating impact on the careers of those investigated. The SRA’s attitude has resulted in a noticeable hardening of firms’ attitudes towards those accused of any kind of sexual misconduct – which ironically presents another risk for COLPs to factor in – being sued for unfair dismissal or victimisation.

Internal investigations

Firms in receipt of complaints of harassment will inevitably need to conduct their own investigations. These will need to comply with standards of fairness accepted by an employment tribunal (ET) – including putting cases properly and fully to respondents to allow them to understand and answer the case against them. It is not necessary to complete (or even conduct) an investigation before reporting the allegation to the SRA, as the threshold for reporting is low and the SRA will usually want to conduct its own investigation regardless.

COLPs may be interested in the 2024 employment tribunal decision of Rustambekov v Fieldfisher LLP (2216104/2024), which found that an employee had given deliberately false evidence to the firm when making a complaint of sexual assault against Mr Rustambekov. Although the firm, Fieldfisher, had been unable to form a view on this particular issue during its investigation, it had dismissed Mr Rustambekov. However, in doing so it had both failed to follow a fair procedure in not putting material matters to Mr Rustambekov and to consider the effect of the “negative pull of the lie” on the general evidence. Essentially, it had failed to ask itself whether any of the complainant’s evidence could survive the deliberate falsehood found.

Despite its well-publicised stance on findings of dishonesty, the SRA confirmed in July 2025 that it would not act against the complainant.

Immunity from suit

In Gibbons v BG Solicitors LLP (2600652/2024 and 2601823/2024) a solicitor attempted to sue her firm for victimisation arising from the firm having submitted a report to the SRA about her. In an interesting decision, the ET held that such reports attracted absolute immunity from suit on public policy grounds such that it was not possible to found a complaint to the ET on the fact of a report being made to the SRA.

This does not, of course, absolve the firm from conducting a proper investigation if it intends to take internal action in addition to making the report.

Regulatory reach into private life

• The case of SRA v Brady (12660/2024) involved a solicitor with four years’ post-qualification experience who was suspended for 12 months by the Solicitors Disciplinary Tribunal (SDT) following two allegations of non-consensual touching that were proven. It is subject to appeal by the respondent and is a case for COLPs to watch given the issues involved. For now, there are a few takeaways for COLPs from this decision.
• The SDT published the SRA’s opening note. This sets out the SRA’s arguments as to why this case – involving junior lawyers who were friends and operating in a recognised work hard / play hard culture – was a matter for the regulator. The SRA argued that non-consensual touching is always so serious that it is a matter for the regulator, whether there is any connection with legal practice in the traditional sense. The SDT appeared to accept this proposition. For COLPs, this indicates that any knowledge of non-consensual touching by a regulated professional or employee may trigger reporting requirements, irrespective of connection to the workplace.
• The SDT found that non-consensual touching was sufficient to engage principles 2 (reputation of the profession) and 5 (integrity) of the SRA Principles. It did not find the allegations of abuse of position / taking unfair advantage proven because, in each case, the respondent did not have any material power over the complainant’s career and there was no abuse of position.
• The case is the latest push by the SRA to limit the impact of the Beckwith decision (see Iain Miller’s article on this from Legal Compliance January 2021 and it will be interesting to see whether the High Court permits this.

Lessons from other professions

In some ways, the SRA is playing catch-up on issues of sexual misconduct as prior to the #MeToo revelations its focus was much more on handling client funds. The medical professions, in contrast, have always had to grapple with complex issues of consent and sexual motivation.

With this in mind, it may be helpful for COLPs to reflect on the case of GMC v Shah [2025] EWHC 899 (Admin), in which the High Court considered the General Medical Council’s appeal that a suspension was not sufficient sanction for a doctor accused of sexual misconduct. In doing so, the court considered the Medical Practitioners Tribunal Service’s finding that the use of terms such as “good girl” and “bird” were inappropriate but not sufficiently deplorable to merit a finding of serious misconduct. Although recognising that the use of such terms involved a breach of the Equality Act 2010, the purpose of the disciplinary regime is not the same as that of the Equality Act. While relevant in terms of setting workplace standards, a breach of the Equality Act “is not a trump card leading to an automatic finding of misconduct” [at para 88].

The judgment also raised some interesting issues about how two incidents with an appreciable time gap between them should be treated. The tribunal had concluded that two incidents some five years apart – with the last in 2019 – should be treated as aggravating factors indicating a longstanding conduct issue rather than a one-off occurrence. This was described as “an unkind forensic attempt to turn mitigation into aggravation” with the judgment making clear that this reasoning was unconvincing.

Finally, the court ultimately agreed that the tribunal was right to consider how unlikely it was that Mr Shah would risk his career again, saying: “An absence of risk of repetition does not have to be driven wholly by remorse, shame or self-loathing about past conduct; just as offenders leaving prison may think twice about reoffending not just out of sympathy for their possible future victims.”

Key takeaways

The SRA remains very focused on issues of sexual misconduct and its threshold for investigation and recommending sanctions appears to be very low. However, the courts and the ET appear to be adopting a more nuanced approach. For COLPs, this means that there are several jurisdictions to watch to ensure that firms are navigating this tricky area correctly.

COLPs should be very wary of assuming that all contraventions of the Equality Act 2010 can be considered serious misconduct in a professional context to justify the dismissal of solicitors. Such decisions should only be taken after following a fair procedure and with due consideration of all the relevant factors.