Misuse of Non-Disclosure Agreements: Submission to the Women and Equalities Committee’s Inquiry into Sexual Harassment
Jennifer Robinson has, together with Anya Proops QC, Aileen McColgan and Natalie Connor of 11KBW, yesterday made written submissions to the Women and Equalities Committee’s Inquiry into Sexual Harassment, specifically in relation to the misuse of non-disclosure agreements in cases of sexual assault and harassment.
The Committee was established in June 2015 to hold the Government and its Equalities Office to account. Its Inquiry into Sexual Harassment was launched at the beginning of this year and the Committee is currently hearing evidence from various individuals who have experienced or witnessed sexual harassment, and individuals which have signed NDAs in that connection.
Controversy over the use of NDAs in relation to sexual assault and harassment cases arose after the Harvey Weinstein scandal broke in late 2017 and it became apparent that NDAs had been used to effectively suppress repeated allegations of rape, sexual assault and sexual harassment over several decades. Concern has been raised about the extent to which NDAs conceal wrongdoing and potential criminal acts, contribute to a culture of silence and foster an environment in which wrongdoers feel that they can continue to act with impunity, placing others at risk. In the UK, Zelda Perkins, Weinstein’s former personal assistant in London, has spoken out about the NDA she felt pressured to sign in relation to the alleged sexual assault of a colleague. Further controversy followed the President’s Club annual charity dinner in London in January, where it was reported that women staffing the event had been groped and harassed but had been required to sign NDAs prior to the event, which they understand prevented them from speaking out. It was further reported that the women did not have a proper opportunity to read the agreements prior to signing them and were not permitted to retain a copy of what they had signed. In response, Prime Minister May called for a review of the use of NDAs.
The submissions provided yesterday to the Committee highlight that there is a real risk of ‘wrongdoers’, i.e. the people in respect of whose conduct the NDA is drafted, acting with impunity and abusing their dominant position so as to induce an individual (who may be a victim of criminality) to enter into an oppressive and excessive NDA which prevents serious or criminal wrongdoing from coming to light. The submissions look not only at NDAs which have the effect of concealing sexual harassment of women, but also more broadly at confidentiality agreements signed by men and women alike which are designed to conceal serious wrongdoing, including possible criminal conduct, and to prevent free speech and legitimate public interest disclosures. The submissions examine the existing legal and regulatory landscape in this area, including the protections against enforcement of such agreements, protections for whistleblowing and the possible criminal and regulatory sanctions which might apply to those who facilitate their creation, including lawyers.
Ms Robinson told Channel 4 news tonight that “there are real and legitimate concerns” that NDAs have been misused “in a way that creates a culture of secrecy and impunity for wrongdoers”, emphasising that “we must do as much as we can to encourage women who have suffered sexual assault and harassment so that they feel comfortable coming forward and we don’t put any additional legal pressure or otherwise on them to stop them”.
