Social 24 October 2018 | 12:09

Non-disclosure agreements – a licence to harass with impunity?

24 October 2018 12:09

Sexual harassment is easy as ABC apparently. Well, it is if you are the businessman referred to only as ‘ABC’ in the Court of Appeal judgement reported in The Telegraph’s ‘The British #MeToo scandal which cannot be revealed’ story today.  The article reveals that a leading businessman has obtained an injunction preventing The Telegraph from reporting a series of sexual harassment and racial abuse allegations made by his staff. The reason for the gagging order on the newspaper is that there are a number of other gagging orders, or Non-Disclosure Agreements (NDAs), in place with his employees, and the appeal court has found that these ‘trump’ the free speech and public interest arguments that the High court had previously upheld.

Unsurprisingly, there is outrage that someone with a track record of such ‘discreditable conduct’, (the words of the Appeal Court justices), could effectively get away with being held to account by simply buying the silence of his staff and his way to his preferred legal outcome at the same time. So how is this possible? And shouldn’t we be dispensing with NDAs in cases such as this? While I would like to say ‘yes, it’s a black and white case’, this is complex, and we need to think about what is going on here.

When a woman makes an accusation of sexual harassment against her employer (or any form of discrimination for that matter), it is a very isolating experience. She often finds that she is not believed or she is blamed. She is the one who is labelled/moved/forced out of the organisation while he simply remains in position. The organisation often buys her silence by putting an NDA in place, usually before it even gets to tribunal, and she takes what she or her legal team have been able to negotiate and moves on with the rest of her life, trying to get over what has happened to her.  He meanwhile stays in post and possibly does it all over again. If we consider the balance of power in this situation, the only power the individual woman has is her threat to speak publicly about what has happened to her. She or her legal team use that threat to secure her a settlement, which is probably the only positive thing she can get out of it. If we remove her right to an NDA, what other cards does she have to play?

Now consider the serial offender and his employer. His pattern of abuse is probably known to them. Are they keeping any records of accusations made or complaints upheld? Do multiple women make complaints about the same man? Anonymised records break no NDA terms, but would at least show patterns of behaviour. The argument is that NDAs are letting abusers off the hook, but the truth is it’s a combination of employers and the law that is doing this. His behaviour should be properly dealt with and appropriate sanctions should be put in place. Hushing it up is not a measure of success when he should be out the door.

Our legislation in this area is weak. The Fawcett Society’s Sex Discrimination Law Review, which was Chaired by Dame Laura Cox, concluded that we need to outlaw harassment from clients, customers or contractors (‘third party’), or we will simply face another Presidents’ Club scandal. We also went further, arguing that we need a new duty on employers to prevent harassment. The EHRC has now made the same recommendation with a code of practice. We have to hold employers to account, require them to publish what they are doing to prevent it and root it out.

The Women and Equalities Select Committee Inquiry also echoed this call for a new duty, and concluded that NDAs are being abused and that their use should be curtailed. I agree with them.  Often the terms of NDAs are far too wide-ranging and prevent some of the worst conduct from being revealed. The government is proposing to restrict their use, but we can’t just take them away without putting something else in place, or it risks leaving individual women at work less powerful than they are now. We must change the culture to one that supports and believes her when she speaks out, rather than one that moves to silencing her and protecting him. We need to strengthen her hand not weaken it, and we need to hold employers accountable for the conduct of their staff, rooting out the worst offenders, not leaving them in place to simply repeat their behaviour with other women. An NDA is a symptom of a bigger problem – the balance of power in the workplace and the culture of cover-up. All the cards are still stacked in his favour. It’s time to redress the balance.

Sam Smethers is Chief Executive of the Fawcett Society