Few lawyers would argue that confidentiality agreements should be used to cover up crime and sexual abuse.
However, lawyers do have a role to play in informing public debate over banning non-disclosure agreements (NDAs).
Settlement agreements signed on termination of employment do not normally relate to criminal sexual harassment. In fact, in a recent survey of specialist employment lawyers by the Employment Lawyers Association (ELA), 27% of respondents said they had never advised on incidents of sexual harassment that might potentially be criminal. Settlement agreements typically relate to redundancy, poor performance, misconduct, unpaid wages and other kinds of discrimination.
Usually there is provision for payment and the agreement may restrict discussion of what happened. Where facts are uncertain or positions are entrenched a degree of restraint from all those involved can help people move on. Most employees also want to know what will be said when a reference is sought. Settlement agreements can offer a clean break, fresh start and financial support.
The wider ‘public interest’ does not always align to the interests of individuals in dispute. So, for example, an employee who has been bullied at work may want a new job, extra cash to tide them over and space to move on, while the wider public interest may lie in airing the problem and reducing risk of repeat.
Parliament’s Women and Equalities Select Committee has produced a sensible report on sexual harassment. It does seem likely that any changes to confidentiality law will be well-considered, and will take account of the potential impact on employees in other situations, as well as victims of criminal sexual harassment.
The ELA’s own report, Sexual Harassment and Employment Law, intended to inform debate by explaining some of the legal and practical context, is available on the ELA’s website at ELA - Sexual Harassment & Employment Law.
Employment Lawyers Association chair