Kavanaugh – #metoo – What businesses should learn
5th October 2018
Dr Christine Blasey Ford’s testimony before the US Senate on 27 September 2018 saw her refer to some of the social pressures which she says stopped her from reporting alleged sexual harassment by Brett Kavanaugh in the 1980s. In light of these allegations, a number of other women have made similar allegations in a way that typifies the #metoo movement. For our clients, it is important to appreciate the ramifications of the #metoo movement on their businesses, especially in times of heightened publicity illustrated by the Kavanaugh nomination saga.
For employers, it is not only proper but also advantageous to have in place robust reporting mechanisms. Given the (justifiably) renewed intensity of the #metoo movement, it has arguably never been more important. Vicarious liability means that an employer is at risk of inheriting responsibility for harassment, discrimination or victimisation caused by its employees. This poses a risk of both financial and severe reputational damage. Elements of the Equality Act 2010 (the “EA”) provide defences where the employer has taken all reasonable steps to avoid the offending treatment occurring. Sadly, all too often internal anti-discrimination, harassment, bullying and whistleblowing policies are not given the attention they are owed given that judges invariably examine these policies when determining whether an employer has implemented sufficient strategies to benefit from a statutory defence.
Non-disclosure agreements (“NDAs”)
The Solicitors Regulation Authority’s warning notice of 12 March 2018 stressed that confidentiality provisions must not (i) lead individuals to feel unable to notify a regulator or law enforcement agency about sexual or other misconduct or (ii) otherwise improperly threaten litigation or adverse consequences. Since then, on 27 March 2018 the Equality and Human Rights Commission has recommended that Parliament introduce statutory codes with broadly the same effect as the ACAS Codes in that non-compliance would give a Tribunal discretion to award a 25% uplift in any compensation payable. This discernible shift in focus towards calls for legislative intervention was echoed by the publication of the Women and Equalities Committee’s (the “WEC”) Report on Sexual Harassment in the Workplace on 18 July 2018 (the “Report”). The Report made a number of recommendations including to (i) legislate to require the use of standard approved confidentiality clauses and (ii) clarify whistleblowing legislation to make clear exactly which disclosures are protected and those that cannot be prohibited by a confidentiality provision.
(i) Prescribed Confidentiality Clauses
The concept of standard clauses is not new. In a separate context, the introduction of GDPR has seen the ICO publish standard (but not mandatory) clauses to be incorporated in contracts regarding the transfer of personal data. Nonetheless, prescribing the form of confidentiality clauses would hamstring parties during negotiations. A Parliamentary draftsperson could try to devise an all-encompassing provision but those efforts are likely to be unsuccessful. The net effect of this proposal by the WEC may be that for parties particularly concerned with confidentiality issues, they may not be encouraged to resolve matters without litigating.
(ii) Tightening Whistleblowing Legislation
Similar concerns arise regarding the WEC’s proposals relating to whistleblowing legislation. On first reading, widening the definition of protected disclosure to include allegations of sexual harassment may sound appealing. We believe this feeling may be misplaced.
The premise that the current legislation does not protect a disclosure of sexual harassment is incorrect. Actions which could be described as sexual harassment can amount to an offence under several statutes as can actions which cannot be described in such strong terms but nonetheless subject an individual to unfavourable treatment on the basis of their sex (or other protected characteristic as defined by the EA). Assuming the disclosure is made to an appropriate person and in the public interest, such disclosures are certainly capable of qualifying for whistleblowing protection under the Employment Rights Act 1996 (the “ERA”).
Further, the whistleblowing legislation implements the principles of the Public Interest Disclosure Act 1998. Judges are keenly aware of the public policy motivations providing a platform for this legislation and use it to be flexible. Introducing tighter definitions of protected disclosure would unavoidably restrict judges’ ability to be flexible and purposive in their application of whistleblowing protection.
Given that whistleblowing legislation is already capable of protecting the sorts of allegations WEC discussed in their Report and that a fundamental premise relied upon does not seem watertight, implementing definitions as they suggest may be counter-intuitive. In other words, it may limit the scope of whistleblowing protection rather than broaden it.
In employment law, NDAs are most commonly seen in relation to settlement agreements at the termination of employment. The prevailing concern from lobby groups is that individuals are unaware of what they are and are not entitled to disclose when they are subject to a confidentiality restriction. This is difficult to square with the regulation of these agreements which require a legal adviser to certify that they have advised the individual on the terms of the agreement without which the agreement is unenforceable. Most settlement agreements contain stock phrases such as “except as required or permitted by law” which does accurately limit the breadth of the confidentiality restriction. Even if this were unclear to someone without legal training the involvement of a legal adviser should ensure that individuals are fully informed.
What this means for Businesses
The legal position on the reasonable steps defence and use of NDAs remains unchanged. We do not expect the elements of the Report we have discussed to be adopted. Nonetheless, the particular risk of reputational harm flowing from the unethical use of NDAs in the current socio-political climate should be acknowledged. Businesses should consider seeking advice on the appropriateness of their NDAs and confidentiality clauses. In particular, it would be wise to consider steps to “future proof” the enforceability of such clauses in the event that future legislation is introduced with retrospective effect.
Our employment department has experience and expertise in all of the above areas.
If you would like any further information, please contact Noel Deans or Sean Field-Walton by email at firstname.lastname@example.org, email@example.com or by telephone at 0207 955 0880.
This article should not be taken as definitive legal advice on any of the subject matter covered. If you do require legal advice, please contact Rosenblatt as above
Author: Sean-Field Walton