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Firms dealing with allegations of sexual misconduct should expect close scrutiny

The spotlight might currently be on Baker McKenzie, but alarm bells are ringing all around the city as to who might be next.

It’s extremely difficult for someone, usually a woman, to stand up to their abuser and report sexual assault – many are frightened about reprisals but also feel shame at allowing themselves to have become a victim.

But post MeToo and Times Up, women are increasingly emboldened to report inappropriate behaviour and more firms will likely find themselves dealing with a serious complaint that could have happened years ago, not least since to ensure a defendant doesn’t benefit from limitation, civil law recognises that in certain circumstances the usual three-year limitation period within which a victim needed to issue proceedings in a civil court can be set aside if the victim was too frightened to speak out earlier.

Once an allegation is made, the ripple effect is huge. Limiting reputational damage will be high on the corporate agenda, but much more damaging long-term is mishandling an internal investigation.

Historically, where things have gone wrong for employers facing sexual misconduct allegations against an employee for whom they are responsible is to attempt to ‘sort it out ‘ with a gentle arm around the complainant, perhaps a bunch of flowers and a chat over coffee, and back to work with a sigh of relief. Writing off inappropriate behaviour as a ‘misunderstanding’ is and never has been taking it seriously enough.

In more pernicious circumstances, the same people who may not have condoned alleged sexual harassment but probably turned a blind eye have been called in to deal with the fallout and attempted to sweep it under the carpet and hush things up. Any firm that feels they’ve armed themselves with signed non-disclosures agreements to silence victims shouldn’t be complacent. An NDA used as a tool to force silence and to conceal a criminal act is not enforceable. Sexual assault is a crime and like any other criminal act, an employer aware of it must report it to the police and potentially to the relevant professional regulator.

What many also fail to understand is that any internal investigation by the company must not damage evidence that may be later used in a criminal investigation by the police, in regulatory proceedings or in a civil claim for damages. Any decent personal injury lawyer pursuing a civil claim will be ready to pick up on poor processes and proof that the employer failed to protect the victim.

And where gossip is rife, letting slip the name of the alleged victim be it around the office or in official papers could be contempt of court where a claim progresses because the victim of a sexual assault is entitled to life-long anonymity. And adding to its troubles, a firm may find that it is liable for legal fees and any subsequent damages because its insurance does not cover sexual assault that was an intentional act.

There are of course duties not only to the victim but also to witnesses and the alleged perpetrator. Worried employers currently nervous about accusations waiting to emerge must expect full scrutiny at every stage. Getting it wrong at the outset turns a difficult situation even worse.

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