Sexual harassment in the workplace unfortunately remains a key area of concern, most recently evidenced by the scandal involving Philip Green. This case highlighted the controversial question of whether non-disclosure agreements can be used to prevent employees from reporting sexual harassment allegations or similar misconduct. The use of non-disclosure agreements in sexual harassment cases is something that has been strongly criticised, particularly following the emergence of the #MeToo movement.

The Philip Green case stands out from others, as in this circumstance it was a newspaper (The Daily Telegraph) that wanted to report publicly about the allegations.

The background is that five employees made accusations against Philip Green, with some of these complainants bringing Employment Tribunal claims. All were resolved with settlement agreements paying out large amounts of money to the employees. The settlement agreements contained non-disclosure clauses under which all parties agreed to keep the details of the complaints and the settlement payments confidential. Nothing in the non-disclosure agreements prevented the employees in question from bringing criminal actions or from making other legitimate disclosures.

A journalist from The Daily Telegraph contacted Philip Green and his companies to notify them that the newspaper was about to publish a story about the allegations. Philip Green immediately applied for an injunction to keep the information confidential in accordance with the non-disclosure clauses. The court in the first instance refused to grant an interim injunction until after a full trial on the matter. The decision was appealed. The Court of Appeal allowed the appeal and granted an injunction.

The Court of Appeal’s assessment of the case mainly focused on the balancing act between privacy and confidentiality and freedom of speech. In its reasoning the Court emphasised that the publication would likely cause immediate and irreversible harm to Philip Green, that it was likely the information was obtained through a breach of confidentiality, that the newspaper was unlikely to be able to establish that it was in the public interest for the duty of confidentiality to be breached, and finally, that there is a public benefit in upholding non-disclosure agreements.

The Court of Appeal decision was supposed to be followed up by a full (but speedy) trial to make the final determination. However, just two days later Lord Hain, shielded by his parliamentary privilege, made the disclosure about who the accused individual was. This has led to some criticism and a suggestion that Lord Hain abused his parliamentary privilege in deciding that he knew better than the courts.

It should be noted that the Court of Appeal decision was only an interim one and it cannot be assumed that all non-disclosure agreements will be enforceable in sexual harassment cases. An important point made by the Court was that such agreements should be entered into on a free basis and upon taking independent legal advice. Non-disclosure agreements can generally not prevent victims of sexual harassment from reporting this to the relevant authorities. It is also important to note that this was not a case about employees being prevented from making disclosures about sexual harassment (two of the employees also wanted the matter to stay confidential), but about a news publication potentially revealing allegations in breach of confidence.

Yoko Nakada is a senior associate in the Employment, Immigration and Reward department and Deputy Head of the Japan Business Group at the law firm Lewis Silkin LLP
For further information, please contact Koichiro Nakada – Head of Japan Business Group (koichiro.nakada@lewissilkin.com) and Yoko Nakada - Senior Associate, Deputy Head of Japan Business Group (yoko.nakada@lewissilkin.com).
Disclaimer
The information and any commentary on the law contained in this bulletin is provided free of charge for information purposes only. No responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by Lewis Silkin LLP or Centre People Appointments. The information and commentary does not, and is not intended to, amount to legal advice and is not intended to be relied upon. You are strongly advised to obtain specific, personal advice from a lawyer about your case or matter and not rely on the information or comments in this bulletin.

This information is supplied by Lewis Silkin LLP www.lewissilkin.comm

Article top