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Don’t use NDAs to silence sexual harassment claims, arbitration service warns

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Fresh guidance looks to address misuse of gagging orders

Non-disclosure agreements (NDAs) must not be used to prevent someone from reporting sexual harassment at work, arbitration service Acas has warned.

The fresh guidance published this week aims to help employers and workers understand what NDAs are and how to prevent their misuse.

Acas says that they should not be used to stop someone from reporting discrimination or sexual harassment at work or to the police; disclosing a future act of discrimination or harassment; and whistleblowing (workers who expose wrongdoing in the workplace).

The advice goes on to warn that NDAs, also known as ‘gagging orders’ or ‘hush agreements’, should not be used as a tool by which to “hide a problem or brush it under the carpet”.

While recognising times when the use of NDAs are appropriate, such as restricting workers from disclosing sensitive commercial information, Acas urges employers to consider carefully whether one is needed in the first place as their misuse can be “very damaging” to an organisation.

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If deemed appropriate, the guidance states NDAs should be written in “clear, plain English that’s simple to understand and leaves no room for ambiguity”.

“The news has reported on victims coming forward that have alleged appalling abuse by high-profile figures who have then tried to use NDAs to silence whistleblowers,” Acas chief executive Susan Clews said. “NDAs can be used legitimately in some situations but they should not be used routinely or to prevent someone from reporting sexual harassment, discrimination or whistleblowing at work.”

The Solicitors Regulation Authority (SRA) previously warned lawyers not to become their client’s “hired guns” and include clauses that seek to prevent lawful disclosure of issues such as discrimination, harassment or even sexual abuse.

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72 Comments

Anonymous

None of this is really new, only that they’re of them being pulled together as guidelines.

NDAs have never been used to hide illegality or prevent whistleblowing, nor can people be compelled to enter one to prevent if a complaint. This doesn’t mean, illegality or whistleblowing aside though, that a party to an NDA can break it after receiving a payout if a valid contract is in place.

(4)(0)

Anon

In the current climate, I think this will be achieved for all practical purposes because I can’t see NDAs having any teeth in a workplace harassment scenario. It seems to me that people feel far more empowered to report now that the dam has burst, and no reputable business is going to sue a victim of workplace misconduct for breaching an NDA by reporting the incident to a regulator.

(3)(3)

Anonymous

They may use, more likely to injunct.

(0)(0)

A A

Really? I can’t imagine a court granting an equitable remedy in such a situation.

(8)(1)

Anonymous

I can.

(1)(8)

Anon

Why?

Anonymous

Why would you think they wouldn’t?

Anon

Because the information would by then have been disclosed.

Why do you think an injunction would in fact be granted?

Anonymous

Because injunctions stop information from being disclosed.

Anon

But at the point of considering which relief to seek – a claim for damages or an injunction – the information would have been disclosed. So the balance of convenience would militate against the grant of an injunction and an injunction would be refused.

Anon

Not if the information hadn’t been disclosed or the intention was to prevent further disclosure.

Anon

Agreed if the information hadn’t been disclosed; if it had been, and was in the public domain, unlikely that the balance of convenience would lean in favour of an injunction.

Anonymous

You’d get an injunction in a flash, especially given it is to enforce a negative covenant. And you can insert an indemnity costs provision into the deal and make all payments conditional on maintaining confidentiality. So you keep them gagged and have a money judgment too.

Actual practitioner

That is not right. It would depend on whether breach of covenant had occurred and if the information was in the public domain. Remember that the balance of convenience is a key factor here.

Anonymous

But, “actual practitioner”, there is very heavy weighting towards enforcing negative covenants, to the point that balance of convenience falls away to next to nothing at all.

A A

Even if the guideline requirements are strictly met, surely there is a residual equitable discretion not to issue an injunction in these circumstances?

Surely:
– An injunction preventing an individual from contacting the police to make a complaint is certainly against public policy – and potentially a sign that the injuncting party does not have “clean hands” contrary to one ethical principle.
– An injunction would prevent the individual from accessing a remedy for any actionable ill-treatment which contravenes a second equitable principle.

At very least, it puts the claimant in the position of making some *extremely* unattractive arguments in pursuit of a remedy they do not have of-right.

Anonymous

Injunctions can’t be used to stop people going to the police. No-one has suggested otherwise.

The matters subject to an injunction are often unattractive to both claimant and defendant, hence the existence of the injunction.

Anonymous

Whatever happens, the agreed facts set out in the NDA ensure that the complaint is going nowhere whatever forum the money grabber choose to try to take it after they have been paid out. “I verified untrue statements to pocket the cash” is not an attractive response to cross.

Anonymous

Sorry, they may sue, more likely to injunct.

(0)(1)

Anon

You’re not going to get an injunction to prevent something that has already happened.

In any event, likely to be a moot point given the government’s intention to legislate.

(1)(0)

Anon

Spot on. Balance of convenience? No.

Injunction denied.

Anonymous

Negative covenant? Yes? Claimant has interest in preventing disclosure and injunction will fulfill purpose meriting the order? Yes. Injunction granted. Go online, my dear, and you are going to jail, do you understand?

Anon

Information already in the public domain? Yes. Injunction refused, costs order against your client. Well done!

Anonymous

I don’t recall the fact the information was in the public domain stopped the Supreme Court granting the injunction in PJS. The court does not look lightly on a party that deliberately acts contrary to an obligation to frustrate the court’s ability to protect the rights of the wronged party.

cloves

A victim of workplace harassment cannot be sued for reporting to a regulator if said regulator is a prescribed person. There is no breach there as NDAs have to allow for disclosure to police, regulators, other such people under PIDA…

(3)(0)

Anonymous

Source please?

(0)(0)

Anon

Do you disagree? If so, explain why. Otherwise, it will be assumed you are troll and will be ignored.

(46)(1)

Anon

Nobody cares what you assume.

Anonymous

Without the source its difficult to know whether to disagree or not.

Anon

So you’re a troll. Nobody cares what you think.

Anonymous

Says you replying.

Anon

Well done.

Anonymous

The NDA can include agreed facts and a confirmation that no conduct occurred that was contrary to regulatory requirements. if a money grabber tried that trick and they were regulated you could raise a complaint against them.

(3)(0)

Beer can

The Home Office is abhorrent.

(2)(3)

Anonymous

Agreed. They should have made sure those criminals were all packed off home. And the HO pandered far too much to undocumented Windrushers too. It was not the UK’s fault these people were not documented after four decades. It was just politicians scared of the race card being played by the media. If it the issue predominantly affected white immigrants the HO would have done the right thing and not backed down.

(8)(5)

Racist government

Two years ago it was revealed that the Tory government had been illegally discriminating against black British citizens, using Theresa May’s unlawfully racist “Hostile Environment” legislation to deny housing, employment, banking services, social security, and even life-saving medical care to thousands of black British citizens.

One of the worst aspects of all was the fact that Theresa May’s “deport now, hear appeals later” principle resulted in scores of black British citizens being wrongly deported, several of whom died in exile overseas.

The outrage was such that deportation flights were cancelled, government ministers pretended to care for a while, and Theresa May had Amber Rudd take the fall for her by resigning.

The following year Hostile Environment was ruled unlawful in the Supreme Court, and then Britain and the mainstream media simply forgot about it.

During the 2019 General Election there was virtually no mention of the Windrush scandal in the mainstream media, as if the use of unlawfully racist legislation to deport black Brits to their deaths in exile overseas was some kind of trivial irrelevance, rather than evidence of how the Tories behave in government.

Another issue that the mainstream media barely covered was the contents of page 48 of the Tory manifesto, in which they pledged to dynamite the power of the courts to rule on government actions and declare government legislation unlawful.

Basically Britain and the British mainstream media didn’t give a shit about Tory racism, or their overt contempt for the rule of law, and now the consequences of this apathy are becoming clear.

Now that the Tories have their majority back they’ve resumed deportation flights, but last night the court of appeals ruled that a deportation flight to Jamaica should be stopped because the deportees had been denied proper legal advice.

The newly emboldened Tories have decided to simply ignore the court ruling and carry out the deportations anyway.

Of course the right-wing authoritarian gobshites will try to defend the deportations by pointing out that the deportees were foreign-born convicted criminals found guilty of offences like class A drug offences and violent crime.

However the current Prime Minister of the United Kingdom was born in the United States, openly admits the use of class A drugs like cocaine, and was recorded orchestrating the violent assault of a journalist.

In Britain there’s one set of rules for white upper class toffs, and a completely different set of much harsher rules for people like the working class kids of the Windrush generation who were brought to Britain as small children.

Of course the vile right-wing mob who insist racism doesn’t even exist in Britain will deliberately overlook the fact that Johnson and his cabinet of far-right ghouls have resurrected the Windrush scandal within months of securing parliamentary supremacy, but they’re clearly overlooking an even bigger picture than the fact that Britain is an indisputably racist country under Tory rule.

What they’re failing to grasp is that if the Tories are prepared to ignore explicit court rulings like this, and they push on with their agenda of disempowering the courts, it won’t just be black deportees who suffer.

If the Tories continue brazenly ignoring court rulings, scrap judicial reviews, and prevent the courts from ruling on the legality of government actions, then what’s to stop them from closing our local A&E, allowing planning permission for a toxic waste incinerators near our kids’ school, bringing in retroactive laws to criminalise behaviour that was perfectly legal when we did it, unlawfully attacking our workers’ rights, scrapping our entitlement to social security that we’ve spent decades paying for through National Insurance contributions, or rigging future elections to keep themselves in power indefinitely?

When a lawless and brazenly racist government wins power, the first victims are always going to be people of colour and other minorities, but once they become accustomed to the unrestrained and lawless execution of power, what’s to stop them once they come after the rest of us?

If they ignore legal judgements when it comes to deporting people from their homes and their families over the kind of non-violent drugs offences that they themselves have admitted, do you really think they’ll suddenly revert to respecting the law of the land of their own volition at a later date?

(10)(4)

Anonymous

They were not British citizens. That was the point. 40 years in the UK and they never bothered to arrange citizenship. And to offer compensation was a disgrace.

(8)(8)

Anon

You do know that you can’t get British citizenship simply by demanding it, don’t you?

Facts

What Anon above said.

The Home Office charge extortionate fees for these applications. Fees that are beyond the means of a lot of the vulnerable people who deserve and who would benefit from citizenship. Our country and our government is truly disgusting.

Anonymous

The law was there to require foreigners to have appropriate documentation to access services as part of a sensible strategy to respond to illegal immigration. I do not see why there was anything wrong with that. The sort of people that moaned about Windrush cases are the sort of people applying to court to stop this country shipping out rapists and violent criminals back to Jamaica. Obsessed by race politics to the detriment of the nation as a whole.

Anon

Yes, to all of that!

(1)(0)

Bob

“During the 2019 General Election there was virtually no mention of the Windrush scandal in the mainstream media, as if the use of unlawfully racist legislation to deport black Brits to their deaths in exile overseas was some kind of trivial irrelevance, rather than evidence of how the Tories behave in government.” There was no reporting of this because it never happened. Sensible legislation to protect the ordinary Brit from the harms of rampant illegal immigration was imposed simply requiring foreigners living in the UK to be required to prove evidence of their right to be in the country.

(2)(2)

BAME Born In The UK

I have British passport and was born in London to immigrant parents – one from Southern Europe and one from South Asia.

Am I an ‘ordinary Brit’? If not, where would you suggest the best place for me to be deported if such circumstances came about?

Anonymous

BAME, you seemed to forget that Windrush was about foreigners not Brits, ordinary or otherwise. So your point just shows your ignorance. Still, you do make a case for requiring one birth parent to have been born British before a child can gain citizenship. If only.

Rexit

Boris was not born in this country. He should be OUT.

Anonymous

LC, you delete any comments that refer to sexual harassment and subsequent mediation towards vulnerable volunteers at high-profile London legal charities.

People have been kicked out after complaining of sexual harassment, leaving no-one left to prepare tribunal cases and forcing these clients further into poverty.

Don’t become these pro bono offices’ ‘unhired guns’ to prevent the lawful disclosure of discrimination, harassment and abuse.

(26)(6)

Anonymous

Mediation is good.

(1)(7)

Brexit Smechixt

Protests? Furious Remainers’ Umbrage

(11)(0)

Politics

Farage Riles Undergraduates

(3)(0)

Anonymous

Yawn. She’s back. Apparently being called “a stupid woman” is sexual harassment.

(6)(16)

Oh dear

It’s no wonder why so, so many report report unwarranted horrible behaviour by lawyers, isn’t it?

(3)(2)

Anonymous

Horrible behaviour is rarely warranted.

(0)(0)

Anon

Alleged sexual harassment. Which when the background is explained, does not seem anything like sexual harassment. But the poster is irked because the charity did not give them a reference and blames the charity for their career problems.

(7)(19)

You Need To Look Up ‘Victimisation’

My Inn of Court stepped in with pro bono help as the harassment at the charity was so bad. The benchers would have told me to go ‘eff myself if all I had were ‘allegations’.

Look up what the law says about victimisation. Withholding a reference and kicking people out after bringing a formal complaint for harassment is 100% victimisation.

The harasser was found by a formal disciplinary committee to have brought the charity into disrepute for repeatedly shouting at volunteers in front of clients. You know, like normal, stable people with good judgement do.

You might think shouting is okay, but I bet you lack the testicular fortitude to shout at colleagues in front of clients.

He then sought information about me from a journalist. All this is known to the charity, and he’s still able to volunteer. I lost track of how many times I reported him to the police, and he can still volunteer and stalk other women.

Go and ask the charity if you don’t believe me. Go and ask them how much donation money they then spent on mediation at Freshfields and ask them which QCs they asked to represent them. Go on.

Bet the clients queuing up at the food bank would have rather have had someone prepare their case than to have their papers sit untouched in an office, because good volunteers are kicked out. Any QCs rushing to help them? Perhaps they are too busy on Twitter?

It’s not normal to spend years on mediation with QCs because you put Bar students in charge. It’s not normal to pair volunteers to work together because you think a BAME volunteer is physically safer if paired with a White one. It’s not normal for a charity to have THREE CEOs in one year. It’s not normal to have 22 year old law students run disciplinary hearings without referring to the Equality Act and then to let their mates off the hook.

Why do you think #MeToo comes up every day? The problem is real and rather than stop being sex pests, it’s a mountain of cover-ups and letting harassers get away with it.

(21)(2)

Anonymous

How did the job applications work out after all that?

(1)(1)

You Need To Look Up Victimisation

I’m self-employed now. Guess what? I haven’t been sexually harassed, stalked, attended mediation, shouted at or threatened by anyone since starting self-employment.

Never been anywhere near another charity since. It’s not worth it either as volunteers have no legal protection from harassment, racism or victimisation. Not a peep from any barristers to address this gap in the law that affects millions.

I earn more now than the salary of the main ‘two idiots’ in the office that many other people on LC have written about on here before. After they sat there and did nothing say after day whilst the harasser screamed abuse at me, I’m pretty happy to be earning more tbh.

Anonymous

Self-employed? I feel so sorry for your colleagues.

Anonymous

“Acas says that they should not be used to stop someone from reporting discrimination or sexual harassment at work or to the police”

I’m no expert, but wouldn’t such a clause be void for illegality anyway?

(4)(0)

Anonymous

Depends if the alleged activity was illegal. It’s always been the case that NDAs can’t be used to cover criminality.

(1)(0)

Anonymous

Of course. But since you can’t contract out of your human rights either, the scope is likely to be pretty narrow.

(0)(0)

Anonymous

Most NDAs in the context here are an agreement to bring closure and avoid protracted legal action. The parties to the agreement have to agree to it. So not sure where the human rights angle comes in.

(4)(0)

cloves

I came here to say exactly this

(1)(0)

LivingMeme

Agreed. Use a cloth or duck tape instead.

(2)(0)

Anon

Pacta sunt servanda.

(0)(0)

Anonymous

90% of NDAs are there to save the time, cost and publicity of having to sort out a try on claim. The moaners are quick to take the money. I don’t hear those moaning about an NDA offering to pay back the cash they took for the deal.

(6)(0)

JDP

I’ve found NDAs to be extremely useful in the past, in many cases they have been the only option available

(2)(0)

Anonymous

The problem with all this is that they concern UNPROVEN claims and allegations, not tested in any court of law.

(8)(0)

Bob

What a ridiculous world we live in – all the Jacobin/ Cultural Revolution/ Me too scum overturning perfectly good practices we had in the past, including NDAs and limitation periods for abuse. Never willing to draw a line under it. Allegations equal proven fact. I just wait for the day when the tide turns back. I rejoice at every false complainer imprisoned.

(6)(3)

Anon

Bet all those women in Rochdale would LOVE the idea of a statutory limitation for sexual harassment and abuse.

Do you think it’s a shame they couldn’t draw a line under it all and get on with their lives?

You should make that a central part of your election campaign for councillor.

(16)(12)

Bob

Hardly a situation for NDAs and you know it. If you have something that is a real criminal offence you are willing to back up with testimony go to the police, and do so in a timely way. If you want to extort your boss or colleague for something ambiguous or which never happened, and they are kind enough to offer you money rather than have you prosecuted for blackmail, then put up with the NDA they ask for.

(4)(2)

The UFO Ate My Homework

Why would anyone offer money for something that never happened?

If that worked, we’re all wasting our time bothering with a normal 9-5

😂

(2)(6)

Bob

Naive? Obtuse? Both?

Comments are closed.

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