NDA furore: Employment lawyers back more ethics training

Davies: Reviewing Handbook

Employment lawyers support targeted ethical training in the wake of the furore over non-disclosure agreements (NDAs) as part of settlements in sexual harassment cases.

Meanwhile, the Bar Standards Board (BSB) has confirmed that it is to issue guidance to barristers on the use of NDAs.

A survey by the Employment Lawyers Association (ELA) found that 81% of members backed the inclusion of ethics training focused specifically on their work in its training programme.

The survey – in which 464 members took part – informed an ELA report aimed at those considering potential change to employment law and practice related to workplace sexual harassment.

It follows publication last week of the House of Commons’ women and equality committee’s report on sexual harassment in the workplace, which it found government, regulators and employers were failing in their responsibilities to tackle.

It had strong words for lawyers and their regulators, and 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”.

The ELA report stressed that, “whilst the law is important, the prevalence of sexual harassment to a large extent depends on workplace culture and the behaviour of individual perpetrators and employers”.

Indeed, 61% of members said they would be willing to offer training to school children on workplace rights and responsibilities.

The report noted that only a small proportion of settlement agreements and confidentiality agreements relate to sexual harassment, and an even smaller proportion of which relate to matters that might be considered ‘criminal’.

“It is important that changes focused on a small proportion of claims takes account of the wider impact on other types of employment dispute.”

The survey highlighted how reports of sexual harassment were often not made, or dealt with, early or often enough, meaning that by the time victims approached lawyers, it was often too late for them to ‘save’ their relationships and the attitudes of managers had become entrenched.

As a result, many victims ended up leaving their employment.

Just a handful of respondents said they had ever advised on a settlement which included a requirement that the employee could not keep a copy of the agreement, as happened in the high-profile case of Harvey Weinstein’s former assistant Zelda Perkins.

The report added: “The overwhelming majority of respondents to ELA’s survey confirmed that they thought freedom for the parties to agree terms related to confidentiality, references, reasons for termination etc in settlement agreements was helpful for employers (92%) and employees (82%), whilst a much lower proportion of respondents (40%) confirmed that they thought this freedom was helpful from a public policy perspective, disregarding the interests of those directly involved.”

As a result, only 5% of ELA members supported a total ban on confidentiality restrictions in settlement agreements, but 58% favoured mandatory wording on confidentiality as a condition of enforceability.

The ELA identified access to legal advice “at reasonable expense” as a serious problem for claimants. “In practice, the parties do not typically have equal access to advice.”

It suggested that there may be a public policy argument for a different approach to costs in employment tribunals – where they are generally irrecoverable even if the claimant succeeds – in sexual harassment cases.

The MPs’ report expressed hope that the BSB would follow the Solicitors Regulation Authority in issuing guidance on the use of NDAs, and its director-general, Dr Vanessa Davies, confirmed that it would.

“We agree with the committee that regulators must make clear that sexual harassment will result in serious sanctions and that NDAs should not be used to silence its victims,” she said.

“The BSB is already working in partnership with the Bar Council and the profession on this issue and we share the committee’s determination to address sexual harassment at the Bar…

“We are now preparing to issue guidance on NDAs. We are also reviewing relevant sections of our Handbook, which already makes very clear that harassment is a form of serious misconduct.

“So barristers – with a few important exceptions – are obliged to report harassment to us if they are aware of it. It is already our practice not to sanction barrister victims for failing to report harassment, but we would strongly encourage them to do so.”

Interested in this topic? Check out the Legal Futures Masterclass on NDAs, Harassment and Whistleblowing. 27 June 2019, London.

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