Gagging clauses to blame for a ‘vicious circle’ of future victims
GAGGING clauses are allowing new harassment victims to be created in the workplace, activists and legal experts said as they warned of a “vicious circle”.
Debate over the prevalence of wrongdoing at work was re-ignited yesterday after the Court of Appeal allowed a leading businessman to keep allegations against him of sexual and racial harassment from the public.
Non-disclosure agreements, such as those used by the businessman, who took out an injunction against The Daily Telegraph, allow powerful people to act with impunity, it was claimed.
Maria Miller MP, who chairs the House of Commons women and equalities committee, said NDAS have been used “repeatedly to cover up [bad] behaviour”. She said: “The women and equalities committee select report was very clear that there should never be a case where somebody’s conduct has been unlawful, including bullying and sexual harassment, where NDAS should be used.”
Labour MP Peter Dowd told BBC’S World at One that the law had to be changed. He said: “The judge I presume is interpreting the law as it currently stands and therefore we should change the law. That sort of agreement is completely unjust, it’s completely outside any realm, as far as I can see it, of decency and the law should be changed. “
Baroness Kennedy of The Shaws, the QC and Labour peer, said NDAS are “absolutely inappropriate when there has been sexual assault or any criminal behaviour”. She added: “These should not be used to gag people who have been at the receiving end of potential criminal behaviour and it is really unlawful and unethical for lawyers to be using them for that reason.”
Experts and campaigners argued that by covering up improper or potentially illegal behaviour companies were failing to protect victims.
Lawrence Davies, chief executive of Equal Justice Solicitors, said the use of non-disclosure agreements to silence victims of sexual harassment is “morally repugnant and an abuse of power”.
Paola Diana, a Metoo campaigner, said: “There is often pressure on the victims of sexual harassment to sign non-disclosure agreements. We need to start thinking about all women, because if the old victims all sign nondisclosure agreements, no one will protect the new ones and the cycle will never end. It is a vicious circle.”
Yesterday, supporters of The Telegraph’s call to end the silencing of victims through NDAS suggested that revealing the details of the businessman’s case was in the public interest.
Zelda Perkins, who was forced to sign an NDA by Harvey Weinstein in the late Nineties, said it was “laughable”
‘Someone is always going to be richer and more powerful and have access to more ferocious lawyers’
that the courts would allow the businessman to keep his anonymity.
She said even when an employee had legal representation they often felt that they had to sign the agreements.
“There is often a huge disparity of bargaining power,” she said. “This is the problem with these agreements; someone is always going to be richer and more powerful and have access to more ferocious lawyers than the victim. Even if you regulate the hell out of NDAS that is still going to be an issue.”
Her comments were echoed by lawyers who spoke of a power imbalance when a wealthy businessman sought an NDA with an employee. Harriet Wistrich, a solicitor who set up the Centre for Women’s Justice, said if a victim agrees not to speak out about criminal allegations by signing an NDA, “it raises questions about whether you can or should make such agreements”.
She said: “They may not have had a knife to their throats but that doesn’t mean it’s a free choice. It may be they didn’t understand the implications.”