Time to reform a broken system and lift the veil of secrecy from its victims
It is unsurprising that Sir Philip Green has decided to drop his court action against The Daily Telegraph. Green and Arcadia may not be unduly concerned about the costs of mounting a court case against a major British newspaper, but they will be concerned about the risk of reputational damage if more details of the allegations of “unlawful racist or sexual behaviour”, which Green denies, are put into public domain through evidence given in court.
Dropping the case means that risk goes away for Green. But can it be correct that the rights of former employees are so easily passed over? It is they who feel it is in the public interest to speak out, to “whistleblow” about the alleged behaviour of one of the UK’S most powerful businessmen, responsible for employing more than 20,000 people. Is it right that they remain silenced by Green with renewed threats of legal action if they speak out? Whistle-blowing is protected in law but the Law Society candidly admits in its new guidance that the subject is a minefield for all but the most expert professional. Parliament has debated long and hard to put in place some of the best laws in the world to protect people from discrimination and bullying by unscrupulous employers. Yet, the evidence is that these laws are being flouted and unlawful behaviour covered up. We should not stand by and allow the alleged victims of wrongdoing, unlawful or criminal behaviour to be silenced, or for those accused of being serial offenders to be shielded by legal experts outside the scrutiny of shareholders and beyond the reach of corporate governance.
The women and equalities committee last year looked at how NDAS have silenced victims of sexual harassment in business and other institutions. We heard from lawyers how gagging clauses are routinely used in almost all employment agreements and their chilling effect on those who might have suffered workplace abuse. We heard how internal grievance procedures are curtailed, making subsequent employment tribunals difficult even in serious cases. Our recommendations to government included a comprehensive reform of the use of NDAS to ensure they are not used unethically in cases of sexual harassment; and to make it an offence to use NDAS to try to prevent or limit whistle-blowing.
The committee is now considering whether NDAS are also being used to
mask other types of discrimination. Research by the Equality and Human Rights Commission shows more than 50,000 women a year leave work because they feel they have suffered discrimination while pregnant. This could be just the tip of the iceberg.
A massive imbalance of power is at the heart of the problem – something lawyers have always been required to take into account in their professional conduct. The question is whether the legal profession is honestly acting in accordance with its own professional standards by drawing up, validating or overseeing agreements that effectively cover up racism, sexual harassment, maternity discrimination or worse. Lawyers have to put the public interest first.
The Solicitors Regulation Authority and the Law Society have both acted swiftly following Metoo to remind the profession that their first duty is not to their client but to the public interest, and that is to be applauded. The evidence we have seen on the committee has demonstrated how hard some professionals find it to get the right balance. A change in culture
is needed. The Philip Green case shows how broken the current system is when it comes to NDAS protecting the powerful and silencing victims. Employers and lawyers need to hear a strong message from government that this has to change.
A good way to start may be to allow NDAS currently in force to be set aside if they were not entered into willingly
‘We should not stand by and allow alleged victims to be silenced, or for those accused … to be shielded’
by both parties, or if they are not in the public interest because they mask unlawful discrimination. Perhaps this level of scrutiny and transparency would force employers and lawyers to think again about their ubiquitous use, lifting the veil of secrecy from individuals who have suffered workplace abuse.