NDAs, Harassment and Whistleblowing Masterclass, 2019


This highly topical masterclass focuses on what is probably the most controversial issue currently facing employment lawyers and will examine the whole range of legal, regulatory and ethical problems.

£450.00 ex VAT

Event Details

Date: 16th September 2019 ( 09:30 – 17:00 )

Venue: Cavendish Conference Centre, 22 Duchess Mews, London W1G 9DT

Overview

NDAs, harassment and whistleblowing are under scrutiny like never before. This highly topical and practical masterclass will examine the whole range of legal, regulatory and ethical problems and solutions that have arisen since Weinstein and the rise of #MeToo, such as:

  • Should I – can I – in the interests of safeguarding my firm and my client use NDAs?
  • To what extent have NDAs been demonised and do they still serve a valid and legitimate commercial purpose?
  • Dealing with the fallout if things go wrong
  • Key drafting issues on past, present and future NDAs

The masterclass will specifically cover the following topics:

  • How did we get to where we are on NDAs today and what lessons are there to learn for the future? Recent high-profile cases will be examined
  • How to use NDAs legitimately – it’s not all about whistleblowing
  • Key drafting issues on NDAs
  • Unpicking and redrafting historical NDAs
  • Regulatory risk management and NDAs
  • Whistleblowing: the deficiencies of PIDA in practice
  • How employers should respond to allegations of sexual harassment:
    • The investigation, risks, regulatory reporting, appropriate sanctions for the accused, support for the accused and victim
    • How to deal with the resolution of allegations and settlement of claims.
  • A guide to the Protection from Harassment Act 1997
  • When sexual harassment becomes a crime
  • NDAs and whistleblowing from a criminal law perspective
  • The role of private prosecutions
  • Overlap between criminal and disciplinary investigations
  • Ethics and NDAs
  • Costs and funding considerations in NDA cases

There will be discussion, debate and disagreement, but by the end of the day delegates will leave the event competent to assess their use of NDAs more effectively.

Programme

09.00

Registration


09.30

Chairman’s Opening Remarks

Professor Dominic Regan


09.40

Opening Address: How Did We Get to Where We Are Today?

Juliet Carp, Consultant Solicitor, Keystone Law and Chair of the Employment Lawyers Association


10.15

NDAs – Ethics and Risk

Iain Miller, Kingsley Napley LLP

 Key recent developments from Zelda Perkins to Philip Green

  • The SRA Warning Notice and the Law Society Practice Note: how helpful are they?
  • What are the ethical issues?
  • Where is the line between an acceptable and unacceptable NDA? Is it likely to move in future?
  • Dealing with historic cases.

10.45

How To Use NDAs Legitimately – It’s Not All About Whistleblowing

Oliver Isaacs, Old Square Chambers

  •  Problems with NDAs – Is it just an employment issue?
  • Getting the most out of your NDA
  • The enforceability of NDAs
  • Remedies for breach of NDAs – injunctions and damages

11.15

Refreshments Break


11.30

Roundtable Discussion: What Lessons Are There to Learn For the Future?

Beth Hale, C M Murray

Jonathan Cohen QC

Nick Vamos, Peters & Peters

  •  Recent high-profile cases will be examined
  • Key drafting issues on NDAs
  • Unpicking and redrafting historical NDAs
  • The role of private prosecutions

12.15

An Overview Of The Protection From Harassment Act 1997

Professor Dominic Regan

It took the then House of Lords in 2006 to clarify the workings of this potentially invaluable measure.

  • What is harassment for the purposes of the Act ?
  • The venue and process for bringing the action
  • The lengthy limitation period
  • Strict liability
  • Why the Act can present a more attractive claim than one in the Employment Tribunal
  • Defences?

12.50

Questions


13.00

Lunch


14.00

How Employers Should Respond To Allegations Of Sexual Harassment

Sarah Chilton, C M Murray

  • The investigation, risks, regulatory reporting, appropriate sanctions for the accused
  • Support for the accused and victim
  • How to deal with the resolution of allegations and settlement of claims

14.35

When Sexual Harassment Becomes Criminal

Nick Vamos, Peters & Peters

A summary of the different criminal offences that may constitute sexual harassment:

  • Sexual assault
  • Harassment
  • Malicious communications
  • When should a firm report allegations to the police?

Managing parallel criminal and disciplinary proceedings

  • Legal and practical risks
  • Privilege against self-incrimination
  • Sequencing and outcomes

15.00

Whistleblowing: The Deficiencies In the Legislation and How It Works In Practice

Adrian Lynch QC, 11 KBW

  • What are the facts about whistleblowing claims? How many are presented per year and what percentage and number succeed?
  • The original legislation made no express reference to the disclosures being in the public interest. That resulted in the EAT case of Parkins where an alleged breach of an employee’s contract was found to be sufficient to give rise to a claim for whistleblowing
  • Parkins was reversed by statute and the requirement to show a belief in the public interest was introduced but not defined. What does that phrase mean?
  • The Court of Appeal considered that question in Chesterton Global Ltd. 2018 ICR 731. What view did the CA adopt and how satisfactory is that approach in practice?
  • The original drafting only gave protection to whistle blowers against acts of the employer. That was amended by legislation and the actions of colleagues against whistle blowers could give rise to liability for causing detriment, but not dismissal. How does that apply where the actions of the colleague give rise to the dismissal of the whistle blower by duping the employer into dismissing the whistle blower on other spurious grounds. Can the whistle blower claim for loss from the dismissal?
  • The above requires examination of Timis v Osipov 2019 IRLR 52.

15.40

Refreshments Break


15.55

NDAs: Costs and Funding Considerations

Professor Dominic Regan

In a civil litigation context there are various ways of raising and pursuing a claim . Each has pros and cons . Dominic who advised the House of Commons Select Committee on this very issue will consider-

  • Costs in the Employment Tribunal
  • Funding a Court action
  • CFA, DBA or a non – contentious business agreement?
  • The workings of Part 36
  • What will my net recovery be?
  • How a defendant can put the claimant in an invidious position.

16.25

Workshop Session: Putting it all into practice. Developing Strategies and Policies


17.00

Closes


Speakers

Chairman: Professor Dominic Regan
Dominic is the most prolific speaker on legal issues in the country today. The “lawyers’ lawyer”, he works closely with law firms, international companies and  local authorities, to advise on and provide legal training. In addition he provides advice to a number of government departments including the Ministry of Defence and HM Revenue and Customs. He is also a special advisor to the Association of Costs Lawyers. Dominic has advised Lord Justice Jackson on costs budgeting and management. He has also worked alongside HH Judge Simon Brown QC who pioneered active case/costs management. Dominic is Professor of Law at City University, London and a contributor to the New Law Journal and The Times.

Juliet Carp is a Consultant Solicitor at Keystone Law, Chair of the Employment Lawyers Association (ELA) and the Board Member for England & Wales at the European Employment Lawyers Association. Juliet’s UK work includes advice on whistleblowing investigations and public enquiries, hiring, discipline and dismissal, employment contracts and policies, corporate transactions, TUPE, financial services-related issues, dispute resolution, family-related laws and a wide range of discrimination issues. Her international work includes advising businesses new to the UK and advice on cross-border relocation, international commuter arrangements, international assignment and mobility policy documents, cross-border employment dispute resolution, mobility training and specialist advice on a broad range of Brexit-related mobility issues.

Sarah Chilton is a partner at CM Murray LLP and a partnership and employment lawyer with particular expertise in advising regulated firms and individuals on issues relating to discrimination, harassment and whistleblowing. She frequently advises firms and businesses on harassment and conduct issues, including investigations, training and prevention, as well as exiting senior individuals following disciplinary proceedings. She also advises victims and those accused on their rights and remedies in harassment and disciplinary situations. She frequently advises on issues where there is a criminal and/or regulatory issue and works with specialists in these fields to provide complete and rounded advice for her clients. Much of her work has an international element to it, and she is frequently instructed in international and domestic partnership and employment disputes, in the High Court, arbitration and Employment Tribunal.

Jonathan Cohen QC, Littleton Chambers was appointed QC in the 2016 round at just 38 years old. He is one of the pre-eminent barristers in his fields of practice. He is annually ranked by the Chambers & Partners directory as a leading QC in both commercial litigation and employment law and was twice nominated by that directory as employment junior of the year before taking Silk. Jonathan has a wealth of experience in applying for and defending against injunctions for breach of covenants and infringement of fiduciary and confidentiality duties. He is regularly instructed in breach of confidence claims and is recognised to be one of the leading practitioners in these areas.

Beth Hale is a partner with CM Murray, specialising in employment and partnership law and also acts as General Counsel for the firm. She has significant experience advising employers and employees on all aspects of employment law. Beth provides advice on drafting contracts and restrictive covenants, disciplinary and grievance procedures, whistleblowing issues and performance management. She regularly prepares and delivers training to clients and colleagues.

Oliver Isaacs of Old Square Chambers has over 15 years’ experience dealing with commercial and employment disputes. He is particularly adept at dealing with claims involving directors, minority shareholders, restrictive covenants and breaches of confidentiality. Oliver regularly provides advisory and advocacy assistance in relation to whistleblowing. He is instructed by both employees and employers, regarding their rights and obligations following the making of protected disclosures.

Iain Miller is a partner at Kingsley Napley and specialises in legal ethics, investigations, and public law matters. He is general editor of the leading textbook on legal services regulation, Cordery on Legal Services as well as Chair of the Association of Regulatory and Disciplinary Lawyers. Iain acts for a number of large law firms in advising them on SRA-related issues as well as providing advice to law firm partners, including advising them in relation to investigations by the SRA in relation to alleged sexual misconduct in the workplace.

Adrian Lynch QC, 11KBW. Adrian’s practice primarily spans the full range of employment law but also extends into public law. He has appeared at every level of the domestic courts including the Supreme Court and has also conducted cases before the CJEU and the ECHR. He is recognised as an expert in a wide range of employment law areas including equal pay. He is highly experienced in TUPE and its complications, as well as in all forms of discrimination law and employment related pensions issues. In addition, he has also been involved in, and chaired, disciplinary inquiries. Prior to practice at the Bar, Adrian taught law at King’s College, London.

Nick Vamos is a Partner with Peters & Peters. He has nearly 20 years of criminal law experience focussed on international, high-profile and sensitive matters. Nick joined the firm in September 2017 from the Crown Prosecution Service where he was Head of Special Crime, overseeing the most complex casework in the CPS including the Hillsborough disaster, corporate manslaughter, police corruption, deaths in custody, medical manslaughter and election fraud cases. He also has experience in launching and defending private prosecutions

Venue

Cavendish Conference Centre

22 Duchess Mews

London

W1G 9DT