Sexual Misconduct: Regulatory Lawyers Warn Clients to Expect Increased Scrutiny
In the wake of the #MeToo movement and ahead of new FCA rules, law firms are facing a high demand from the financial services industry for advice on how to crack down on unacceptable sexual behaviour.
April 01, 2019 at 04:00 AM
3 minute read
Financial regulation lawyers are seeing a sharp increase in client demand for advice on how to sharpen their rules governing sexual misconduct, in the wake of the #MeToo movement.
Partners say that demand for advice has been rising steadily in the last year to 18 months since the #MeToo movement began, and the Financial Conduct Authority's (FCA) statements that it intends to take a tough line on sexual misconduct cases.
From December this year, new FCA regulations require financial institutions to measure and make internal checks on sexual misconduct allegations, as part of the next wave of the Senior Managers and Certification Regime (SMCR), which will monitor the standards of conduct for everyone who works in financial services.
The SMCR is aimed at strengthening market integrity by increasing the level of personal responsibility taken by those in the financial services industry.
Though the changes were motivated by the effects of the 2008 financial crisis, the SMCR has been in force for banks, building societies, credit unions and some investment firms since March 2016.
Come December, it will be the responsibility of senior managers to make sure that employees at financial institutions are "fit and proper" to perform their roles, which includes assessing whether employees have been subject to allegations of sexual harassment.
Legal advisers say that they are now telling clients to be aware that a heightened awareness of sexual misconduct within the industry post-#MeToo will see regulators scrutinise internal practices more closely than ever.
Leonard Ng, co-head of EU financial services regulatory at Sidley Austin in London, said: "I have a feeling a lot of firms will not think of a sexual harassment investigation as something they will put into the assessment.
"To no one's surprise, the way in which the world has – rightly – been moving is that people are looking at this more seriously. It's not possible for financial institutions to ignore this anymore," he added.
Another City financial regulation partner, who asked not to be named, said: "Financial institutions are not made to measure these kinds of things. I advise people on how to measure and improve these things."
The FCA's executive director of strategy and competition Christopher Woolard said in December that the regulator had received 64 whistleblower reports regarding non-financial behaviour in 2018, up from 20 the previous year, though this figure includes complaints about discrimination, harassment and racism.
Last September, Megan Butler, the FCA's executive director of supervision, wrote a letter to the chair of the Women and Equalities Committee, in which she said: "Sexual harassment and other forms of non-financial misconduct can amount to a breach of our conduct rules, which include the requirement to act with integrity, and the SMCR imposes requirements on firms to notify us of conduct rule breaches – and in particular the need to do so within seven days where they involve an organisation's most senior staff."
In November, UBS brought in a Freshfields Bruckhaus Deringer team to investigate a sexual misconduct claim made in the summer by a former UBS employee. At the time, the bank said that it found the claim "deeply upsetting".
Following the investigation, Freshfields' review stated that the bank made "no fundamental errors" in its investigation into the allegations, but in an interview with Legal Week the employee who raised the claim branded the report a "whitewash".
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