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Why a ban on gagging orders could have unintended consequences

Why a ban on gagging orders could have unintended consequences

Times5 days ago
As a Hollywood mogul, before his spectacular fall from grace in 2017, Harvey Weinstein produced some modern classics: Pulp Fiction, Shakespeare in Love, Gangs of New York.
Yet his lasting legacy will be to have sparked the MeToo campaign and his convictions in California for rape. Meanwhile, in the UK, as of last week it could be argued that he will be responsible for the death of non-disclosure agreements (NDAs).
Ministers unveiled an amendment to the Employment Rights Bill that will ban employers imposing gagging orders in relation to deals struck over allegations of harassment and discrimination.
Angela Rayner, the deputy prime minister, said that the government acted after having 'heard the calls from victims of harassment and discrimination to end the misuse of NDAs. It is time we stamped this practice out …'
Zelda Perkins, Weinstein's former British assistant and the founder of the campaign group Can't Buy My Silence UK, who blew the whistle on the 73-year-old movie mogul by breaking her gagging order, greeted the move. 'This change has been a very long time coming,' she said. 'For every person who has spoken out, despite fear, legal threats or personal cost — this is proof that your voice made a difference.'
Perkins warned, however, that the regulations imposed under the legislation must be 'watertight'.
Those backing the move have claimed — as Perkins said — that NDAs, or confidentiality clauses, 'have been used to cover up harassment and discrimination for decades'. Hailing the legislation as 'a major turning point', Perkins's group said that it would make 'the UK a global leader in workers' protection and in ensuring the law is not used unethically'.
• MPs press for extension of gagging order ban
It is beyond doubt that NDAs have been abused, with no more graphic example than that of Weinstein, who, owing to ill health, has been moved from New York's notorious Rikers Island prison to hospital while his appeal is pending.
However, the issue is hardly straightforward, as Nikola Southern, a partner at the law firm Kingsley Napley, points out. While 'banning non-disclosure agreements in cases of harassment and discrimination sounds like the right thing to do and many will welcome the change as a major step forward', she warns that the legislative ban could have unintended consequences.
'Many victims of harassment and discrimination — including of sexual harassment — rely on non-disclosure agreements to protect their own interests and identity,' Southern says. She notes that confidentiality can 'work both ways in settlement agreements' and that the imminent statutory changes will mean 'that while poor treatment can be exposed, victims will have less control over what information about them and their experience makes it into the public domain'.
As a result, the lawyer argues, some victims might be 'less inclined to raise complaints of harassment and discrimination'.
Employment law specialists also raise the concern that businesses will be less inclined to settle claims involving allegations of discrimination or harassment if the comfort of confidentiality is not available. Emily Morrison at the firm SA Law agrees, arguing that the ban 'may seem like a win for transparency — but it risks doing more harm than good'.
• Efforts to ban non-disclosure agreements could backfire
Morrison maintains that many victims of harassment and discrimination 'opt for confidentiality to avoid the stress, cost and publicity of litigation'. And she says that 'stripping away that option could force them into a lengthy, traumatic tribunal process just to secure redress'.
Those with concerns over the looming legislation note that most settlement agreements already allow for whistleblowing and do not prevent employers from addressing underlying issues.
Karen Jackson, the director of Didlaw, an employment specialist practice, invokes a colourful analogy, describing workplace litigation as 'ultimately a game of cat and mouse'. Jackson argues that limiting the availability of gagging clauses 'removes the cat's incentive to settle and squashes the mouse entirely'.
Jackson argues that the women she has represented 'want confidentiality, they want closure. They don't want to be tainted by their experiences or defined by them, they want to move on.'
• Harvey Weinstein found guilty on one charge in rape retrial
What lawyers should be doing, the employment law experts say, is to advise alleged victims that confidentiality can be the price of a deal in which they get something in return. 'And if you don't want confidentiality,' Jackson says, 'then you do not have to sign anything. No client of mine has ever signed an agreement under duress: in such a case it would be voidable anyway. If anyone has signed under pressure I blame it on bad lawyering.'
After the Weinstein case blew up in 2018 the watchdog in England and Wales, the Solicitors Regulation Authority, issued a warning notice regarding the use of NDAs, which listed a range of public policy exceptions that solicitors were required to include in all employment confidentiality provisions.
Euan Lawrence, a partner at Blacks Solicitors, notes that the government's proposed change 'goes significantly further' than that regulatory warning in protecting the workers' right to speak up. 'It covers any allegation, irrespective of whether there is any substance or evidence, relating to the discrimination or harassment — except allegations about reasonable adjustments,' says the lawyer. 'There is no requirement that it be made in the public interest, or even good faith, and it also encompasses allegations made to colleagues or the press.'
Still, proponents of tighter legislation remain buoyed by the government's move. Louise Haigh, the former Labour transport secretary, said the announcement meant that 'bad employers can no longer hide behind legal practices that cover up their wrongdoing and prevent victims from getting justice'.
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There are many illegal marijuana farms, but federal agents targeted California's biggest legal one
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