Sexual harassment: non-disclosure agreements and naming names

Although the identity has been revealed, as it stands the businessman “categorically and wholly” denies the allegations of sexual harassment and racial abuse made against him, and as yet no findings have been confirmed or upheld.

However, the attempts by the businessman to prevent the allegations being released into the public is yet another example of the Streisand Effect – an attempt to hide information has the unintended consequence of publicising the information more widely.

Lord Hain’s intervention and decision to name the individual relying on parliamentary privilege is likely to trigger several consequences, which potentially include:

• a response from the judiciary
• a renewed debate in Parliament on whether there should be any limitations on parliamentary privilege and its impact on the rule of law
• further debate over the legality and ethics of NDAs in relation to allegations of sexual harassment/ misconduct, and/ or
• legal action taken by the businessman’s lawyers as a result of the revelation.

From an employment law perspective, in order to protect employees from sexual misconduct or race discrimination, employers should have in place robust policies and procedures to be able to deal with allegations such as those made in this case – in particular, employees should know to whom any allegation should be reported.

As well as grievance and disciplinary policies, employers should implement and maintain clear anti-bullying and harassment policies in the workplace. Workers also benefit from whistle-blower protection – it’s illegal for an employer to treat a worker unfairly as a result of them “blowing the whistle” (provided their disclosure is made in the public interest).

It’s unlikely that the judiciary will welcome Lord Hain’s actions. We’ve seen the parliamentary privilege v. rule of law battle before in the case of Ryan Giggs. Whilst many agree that parliamentary privilege is a democratic and constitutional right, others saw Lord Hain’s revelation as an abuse of power and a defiance to judicial authority. With the rule of law being a fundamental tenet of our constitution, it’d come as no surprise if a judicial/ parliamentary review was held on the role and limits of parliamentary privilege.

The injunction granted by the Court of Appeal has called into question the use of and ethics behind reliance on NDAs. If validly made, an NDA is a legally binding agreement – this means that, if a party breaches a provision of an NDA (such as disclosing any confidential information in the agreement), the other party can, in theory, sue for breach of contract.

However, they may not be fit for purpose. There’s no doubt that NDAs can play an important and legitimate role in the settlement of disputes, however others query whether such agreements have any value at all – particularly for high profile persons, given that doctrines like parliamentary privilege can be relied upon to bypass their very purpose without redress.

In addition, the Bar Standards Board and SRA (the regulators for legal practitioners) are aiming to make it much more difficult for NDAs to be proposed to clients in the first place, which could mean that disputes take longer to resolve or even cause more claims to end up before the courts.