Author: Daniel Stander

Sir Philip Green has been named in Parliament as the businessman seeking to rely on an injunction preventing the Telegraph from publishing a story about accusations of sexual harassment.

The retail mogul was named by Lord Peter Hain, who made a statement in the House of Lords using Parliamentary privilege. Hain highlighted that given the use of non-disclosure agreements (“NDAs”) “to conceal the truth about serious and repeated sexual harassment, racist abuse and bullying”, he felt it was his duty to name Green as the alleged perpetrator, adding that the story was “clearly in the public interest”.

The story sends a shuddering echo of the infamous Harvey Weinstein scandal in 2017. Here we have another man in a position of power, who has allegedly preyed on a series of vulnerable women in his employ whilst also seemingly racially abusing others. When legal implications arose, Green had endless resources to use the law for his benefit, silencing those who were allegedly victim to his abusive and predatory behaviour.

There has rightly been an outcry over the use of NDAs as a tool to suppress fallout from instances of sexual harassment. Not only does it stymie people from talking about their experiences but if the issue is prevented from rising to the top of the public’s awareness, the likelihood of achieving much needed social and legal change is diminished.

The case of Sir Philip Green is but a symptom of a wider problem. There have been a number of influential reports published over the last year, including the Equality and Human Rights Commission’s ‘Turning the tables’ report as well as the Women and Equalities Committee inquiry into sexual harassment in the workplace.

Robert Kennedy once said “We have to make an effort to understand, to get beyond, or go beyond these rather difficult times”. We as employment lawyers share a responsibility to explain clearly to our clients the terms of any agreement that they are signing and the implications. In these trying times, in the #MeToo era, there are certain actions Parliament can and should take to deal with NDAs and more broadly, sexual harassment at work itself.

These include:

  • Introducing a new statutory code of practice on sexual harassment in the workplace, mirroring the Acas Code of Practice on disciplinary and grievance procedures which has helped to change employer practices.
  • Mandating the circumstances in which NDAs in settlements are void.
  • Making any contractual clause preventing disclosure of future acts of discrimination, harassment or victimisation void.
  • Giving power to the employee to choose if a NDA is suitable – sometimes the victim will want their privacy and dignity protected by a confidentiality clause.
  • Strengthening existing protections by extending the limitation period to bring a harassment claim in the employment tribunals from 3 to 6 months.
  • Bringing back lost protections by restoring the power of employment tribunals to make recommendations aimed at reducing the adverse effects of poor employment practices.

Theresa May said the government was committed to reforming the use of NDAs when questioned in Parliament this week:

“Non-disclosure agreements cannot stop people from whistleblowing, but it is clear that some employers are using them unethically,” May said. She said the government was going to bring forward its consultation “to seek to improve the regulation around non-disclosure agreements and make it absolutely explicit to employees when a non-disclosure agreement does not apply and when it cannot be enforced”.

It is now over to Parliament to harness the clamour for change and enact legal protections putting sexual harassment and harassment at work to the top of the policy agenda. We are eager to work with employers and employees alike to reform the current regime and make it fit for the 21st century.

If you have any questions about the topic of this blog, or any other area of employment law, please call a member of our specialist employment law team.