MPs tell regulators to up game on harassment and NDAs

Miller: Little incentive for employers to take robust action

Legal regulators must show that lawyers will face “serious sanctions” if they sexually harass clients or colleagues or misuse non-disclosure agreements (NDAs) to silence victims of sexual harassment, MPs said today.

The women and equalities committee also said that the use of provisions in confidentiality agreements that could “reasonably be regarded as potentially unenforceable should be clearly understood to be a professional disciplinary offence for lawyers advising on such agreements”.

The MPs said they were “particularly concerned by the evidence we have heard about members of the legal profession facilitating the unethical use of NDAs”.

The recommendations form part of the committee’s conclusions following a wide-ranging six-month inquiry into sexual harassment in the workplace, which it found government, regulators and employers were failing in their responsibilities to tackle.

In a section of its report specifically about the legal profession, the committee said the use of NDAs “must be better controlled and regulated to ensure that they are not used unethically in cases where sexual harassment is alleged”.

It said: “It is vital that employees have access to information about the responsible and legal use of confidentiality clauses and that lawyers are held to account for using or attempting to use such clauses in an unethical way.

“We are encouraged that the Solicitors Regulation Authority (SRA) has issued guidance on reporting sexual harassment and the use of NDAs in sexual harassment cases and hope that the Bar Standards Board and the Bar Council also issue guidance.

“However, the regulators must also demonstrate that members of the legal profession will face serious sanctions if they sexually harass clients or colleagues or if they misuse NDAs to silence victims of sexual harassment.”

Among the other recommendations were for the government to legislate to require the use of “standard, approved confidentiality clauses”.

It said these should include clear, plain English wording setting out the meaning, effect and limits of confidentiality clauses, including a clear explanation of what disclosures were protected under whistleblowing laws and cannot be prohibited or restricted.

The committee said the definition of protected disclosures and prescribed persons under whistleblowing legislation should be widened to include disclosures of sexual harassment to the police and all regulators – including the Equality and Human Rights Commission and Health and Safety Executive – as well as any court or tribunal.

It added: “The government should make it an offence for an employer or their professional adviser to propose a confidentiality clause designed or intended to prevent or limit the making of a protected disclosure or disclosure of a criminal offence.”

The committee heard evidence from Zelda Perkins, former assistant to Harvey Weinstein, on what she described as “a week of aggressive interrogation and negotiations” carried out by lawyers at City giant Allen & Overy to agree an NDA when she left Miramax Films in the UK in the 1990s.

It also questioned SRA chief executive Paul Philip, and the report said: “We were particularly disappointed by apparent lack of rigour in the SRA’s approach to investigating whether there had been unethical practice by the lawyers involved in the Zelda Perkins case.

“Paul Philip told us that the SRA had spoken to Allen & Overy’s compliance officer in November 2017 but had not then taken further action until April 2018, after we had taken evidence in public from Zelda Perkins and [Allen & Overy partner] Mark Mansell.”

Mr Philip told the committee: “[In 2017] they very usefully gave us all sorts of information about the types of procedures you would expect to be in place in relation to this type of thing in a large law firm today, but this matter happened 20 years ago.

“We decided at that point in time that we would wait to see what further information came to light. Further information subsequently came to light and we opened up a case.”

The committee noted too that Mr Philip had said there had been “not very much” enforcement activity on the improper use of NDAs.

Among the committee’s other recommendations were to introduce a new duty on employers to prevent harassment, supported by a statutory code of practice outlining the steps they can take to do this, and ensuring that interns, volunteers and those harassed by third parties have access to the same legal protections and remedies as their workplace colleagues.

It also said enforcement processes needed to work better for employees by setting out in the statutory code of practice what employers should do to tackle sexual harassment.

The barriers to taking forward tribunal cases needed to be lowered, the report said, including by extending the time limit for submitting a claim, introducing punitive damages for employers and reducing cost risks for employees.

Committee chair Maria Miller MP said: “It is utterly shameful that in 2018, unwanted sexual comments, touching, groping and assault are seen as an everyday occurrence and part of the culture in many workplaces.

“Government, regulators and employers have been dodging their responsibilities for far too long. There is currently little incentive for employers to take robust action.

“In contrast, there is considerable focus on other corporate governance issues like protecting people’s personal data and preventing money laundering, with stringent requirements on employers and businesses to meet their responsibilities. It’s time to put the same emphasis on tackling sexual harassment…

“NDAs have their place in settling complaints, but they must not be used to prevent or dissuade victims from reporting incidents as is clearly the case now.

“We expect proper regulation of NDAs and that any unethical practices lead to strong and appropriate sanctions.”

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