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Julie Dunane CG Professional

NDAs, Sexual Harassment and the effect on Settlement Agreements

Julie Duane, Solicitor Advocate at CG Professional.

Following the #MeToo campaign, regarding the allegations of sexual harassment against Harvey Weinstein, Social Media has seen a significant rise in sexual harassment allegations in the workplace.

This, in turn, has placed organisations and individuals under significant scrutiny in the workplace which includes an international law firm who are being subject to the Solicitor’s Disciplinary Tribunal following allegations of sexual misconduct and procedurally flawed investigations as a result of an internal grievance procedure.  It is understood that the firm is also being prosecuted in relation to those allegations.  As a result, organisations are being reminded of the importance of impartial and fair procedures and processes and not unduly trying to influence subsequent investigations and concealing acts of sexual harassment in order to avoid speculation and criticism in the public eye.

There has also been a recently reported incident whereby an intoxicated teacher at a high school prom exclaimed that the girls were “gagging for it” in addition to further reports on sexual harassment.

Who is responsible?

Organisations can be held personally responsible for significant shortcomings in procedures and failing to take a thorough handle of the issues thereby resulting in defective processes and procedures. In order to mitigate this risk, organisations should be actively encouraged to generate a speak-up culture across the business in order to demonstrate an act of change and to act as a deterrent from these types of actions being deemed appropriate. 

Equally following the increased focus on sexual harassment in the workplace, Actress Emma Watson, has helped launch a free legal advice line for women who encounter sexual harassment at work.

What does this mean for employers?

With the profile of the #MeToo movement highlighting and accentuating concerns regarding sexual harassment in the workplace and it is concealed, the attention has now been drawn to the use of confidentiality provisions in settlement agreements and the debate and outrage this causes to the public. For those who may not be familiar, a Settlement Agreement is a legal contract which “settles” any potential claims an employee may have against their employer. These agreements are usually entered into on the condition that no liability is admitted by the parties and that the terms and negotiations leading up to any settlement are kept confidential.

Whilst this has been common practice for some time, the primary concern with confidentiality clauses in cases regarding sexual harassment is that these can be perceived as abusive and restrictive forcing an individual to conceal what could be a protected disclosure.   There are therefore concerns that agreements are being used to prevent the proper reporting of sexual misconduct and harassment at work and therefore parties are pushing for a consultation to specify that disclosure to the police should be excluded from the scope of confidentiality clauses.

This should, however, be finely balanced between the needs of combatting sexual harassment but also enabling the parties to privately resolve any dispute and to bring employment-related matters to a conclusion without undue uncertainty as to what may arise in the future.  It is therefore understood that some guidance is required and that ACAS and the Equality and Human Rights Commission (EHRC) are working collaboratively in order to generate guidance which sets out these parameters.

This will continue to be an evermoving feast until clarity is provided by both the regulators and legislators.  Whilst it is accepted that a number of disclosures clearly cannot be excluded, for example, disclosures to the police, others remain a more difficult quandary to define and therefore there does need to be some harmonisation between what is and what isn’t acceptable in terms of those confidentiality provisions.  It is therefore important that legislation is being incorporated in order to protect and align to the true interests of individuals who are being subject to sexual harassment and discrimination against those whereby the parties are mutually prepared to agree to some form of a resolution which does not inhibit or exclude their rights to pursue reasonable disclosures. 

If you are currently experiencing a sexual harassment dispute within the workplace and wish to seek further guidance in order to resolve this matter, please do not hesitate to contact a member of the CG Team who will be more than happy to assist.