Farore Law's latest submissions to the Women's and Equalities Committee

on Mon 10 Dec

The Parliamentary Women's and Equalities Committee have asked for further submissions on its investigation into sexual harassment claims. Farore Law has asked the Committee to widen its remit to look at access to justice generally.

These were our submissions:

 

Written submission from Farore Law

 

Executive summary

 

  • The key issue is access to justice. Rather than accounting for NDAs, they must be replaced with an alternative means of dispute resolution that is better fit for purpose.

 

  • Claimants tend to agree to NDAs given that the alternative is litigation, which can result in adverse publicity, unpredictability, and considerable costs. This is particularly so now that the GOV.UK website publishes all public hearings (including Preliminary Hearings) in the Employment Tribunal.

 

  • NDAs cannot prevent a signatory from going to the police, nor from disclosing otherwise confidential information if it is in the public interest and/or to regulators. All NDAs should have to make this fact clear for the benefit of claimants.

 

  • There ought to be an obligation on employers to retain data in order to identify repeat offenders, so that this fact can be accounted for when addressing further settlements involving such individuals.

 

  • Limitation periods for harassment and discrimination cases in the Employment Tribunal should be extended.

 

  • No internal grievance investigation reports or grievance outcome reports should be covered by legal privilege – a tactic often used in the City to prevent the complainant knowing what evidence was found by the employer, or what conclusions the employer reached.

 

About Farore Law

 

  1. Farore Law is a law firm specialising in the following areas: discrimination (in particular gender discrimination), sexual harassment, sexual abuse, and related mental illnesses. The firm was founded and remains managed by Suzanne McKie QC, who has 25 years’ worth of experience working in these fields as both a barrister and a solicitor. Amongst other things, Farore Law advises and represents individuals whose claims fall within these areas, in both the work and non-work sphere of their lives. The firm has a dedicated Pro-Bono Unit and we have in the last year acted for or advised over 30 people within this Unit.

 

  1. Farore Law continues to address the use of non-disclosure agreements (“NDAs”) in discrimination and harassment cases, and has lent its expertise in this area to numerous organisations. At present we are representing two clients seeking to have their NDAs overturned. In October 2018, Suzanne McKie QC was interviewed by Channel 4 News regarding the use of NDAs, shortly before Lord Hain’s disclosure of Philip Green as the “leading businessman” who took an injunction out against the Daily Telegraph. Suzanne was also quoted in the relevant Daily Telegraph article (available here), and in March 2018 provided evidence to the Women and Equalities Committee inquiry on the use of NDAs in sexual harassment cases. Farore Law also co-sponsored the Fawcett Society's final report into its landmark review of the law of sex discrimination in January 2018. Suzanne McKie QC was also interviewed in November 2018 by the BBC World Service on the use of NDAs.

 

Evidence

 

  1. Farore Law understands that the key issue underlining the Committee’s recent inquiries into NDAs is access to justice. As such: instead of taking action that would in practice significantly diminish the use of NDAs (which can of course be of benefit to the claimant), the Employment Tribunal process should provide for a proper and mandatory alternative means of dispute resolution that takes place in all cases that are not minor (to be defined). This would allow ordinary individuals effective access to justice via shorter without prejudice hearings that take place in private.

 

  1. It is understood that the specific design of an alternative dispute resolution method may be outside the remit of the Committee’s inquiry, but by way of example, the Committee could consider the UK family courts’ approach as a potential model. Here, a without prejudice hearing is heard in advance of a trial, during which the judge sits with the parties involved and expresses their (non-binding) opinion on the merits of the case. These have been found to be very effective in giving the parties the opportunity to make submissions, ventilate their views (or anguish) and get a “judicial steer” that would assist in resolving matters. This is a form of access to justice.

 

  1. Such a process would give claimants time to consider properly whether they want to settle their matter, and a better opportunity to avoid being effectively forced into an early settlement agreement (including the inevitable NDA). At the moment, victims of harassment and discrimination bringing claims in Employment Tribunals proceed straight to full-blown trials if settlement or mediation does not happen. Of course, mediation and settlement requires both parties to agree to submit to the process, which often does not happen. A full-blown trial is prohibitively expensive, with the added disadvantage of publicity – publicity which generally impacts more adversely on the claimant than the employer (or its managers) as any claimant searching for fresh employment can be severely hampered by a Google search.

 

  1. It is incorrect to assume that claimants readily enter into NDAs because they are the easiest and/or most profitable option available. The primary problem with litigation is the adverse publicity, unpredictability, and sheer cost that comes with it. These are major factors as to why victims of discrimination and harassment sign NDAs to begin with. It is therefore essential for the Committee to bear in mind the fact that many claimants do not want to go to court, and why this might be the case.

 

  1. Example #1: adverse publicity – A Farore Law client was bullied and ostracised by colleagues following publication of a court case that they were involved in, despite the fact that they had obtained a favourable judgment, and despite laws that prohibit victimisation.

 

  1. Example #2: costs – One client felt that they had no choice but to agree an NDA as they were unable to keep up with the costs of the case (as run by their former solicitor). The client believed that they were at real risk of losing their home. The client’s former solicitor was also of the view that the respondent was deliberately incurring costs to coerce the client into accepting an NDA. When the client came to Farore Law they were at their wits’ end.

 

  1. An NDA cannot prevent a signatory from going to the police, nor prevent them from disclosing details of their situation if it is in the public interest to do so, in particular to a regulator. With this in mind, the Committee may wish to consider whether or not NDAs ought to make it inescapably clear (e.g. in bold font, or otherwise) that nothing in the NDA prevents signatories from reporting their experiences to the police or other regulatory bodies, or from making a public interest disclosure. Farore Law has advised individuals who were previously unaware that an NDA simply cannot prevent a signatory from going to the police, regardless of the terms. Criminal activity cannot be rendered legally acceptable by signing an NDA. This ought to be made unequivocally clear.

 

  1. It may be the case that the respondent’s lawyer gives the claimant the distinct impression that the NDA prevents them from going to the police or a regulator. This may amount to perversion of the course of justice. But this is highly debatable if an investigation by the police or a regulator has yet to begin. This requires clarity from the Crown Prosecution Service, and the Solicitors Regulation Authority should specifically outlaw it.

 

  1. It is clear from recent events – most notably the Weinstein scandal – that NDAs can and have been used to essentially shield repeat offenders by placing strict conditions on victims and therefore isolating them. (For instance, if clients are prevented from discussing matters amongst themselves, the risk of a collective response is minimised.) Farore Law suggests that there ought to be an obligation on all employers to retain data to enable them to identify individuals who offend more than once, and to account for this when addressing further settlements. The obligation to provide references to future employers that state a person was found to have harassed staff (where findings of harassment have been made internally against an employee) should not just cover the financial institutions.

 

  1. Another important issue that the Committee may wish to consider are COT3 agreements. These are specifically used to record settlement agreements relating to Employment Tribunal claims and can include NDAs, yet do not require a lawyer to sign off on them on behalf of the claimant signatory. The ACAS function is too “hands-off” to give proper protection to a claimant and does not provide legal advice. Consideration should be given to disallowing the use of COT3 agreements in the future without legal input being provided to the claimant (which in the vast majority of cases the employer will pay a specific limited sum for, such as £500).

 

  1. Use of legal privilege – Currently we have three clients unable to access the outcome of their internal complaints to their employers of harassment and discrimination. All worked or work in the City in financial institutions. These clients are also unable to access any of the evidence or recommendations made. This is because the employers have used external law firms to conduct the investigations, and then covered both the investigation report and the outcome with legal privilege, which, of course, they refuse to waive. We regard this as a potential abuse of privilege, if not an abuse of process. This practice must be outlawed: employment legislation and the Equality Act 2010 should be amended to prevent employers adopting this approach. Use of legal privilege in this way is causing claimants to blindly enter into NDAs without knowing what the employer discovered or what the witnesses have said, and/or claimants being forced into signing NDAs because the inability to access the outcome of the grievance process makes litigation all the more unpredictable for them.

 

  1. Limitation periods – The three-month limitation period is subject to a discretion to extend, but it is unreasonable to expect claimants to rely on an extension which may or may not be given by a judge. There is no process for obtaining consent for an extension in advance of issuing proceedings, and claimants are often forced into signing NDAs because the unreasonably tight time limits mean they are often in no fit state mentally or financially (having not yet found new work) to start a legal process that they fear they will not be able to stop without the risk of an adverse costs order. There is little sense in such short limitation periods, which are not reflected elsewhere in civil proceedings. It is particularly galling for claimants to have to issue so quickly and find (as is occurring at present) that many tribunal offices are taking 6 to 7 weeks to process their claims. In personal injury cases there is typically a three-year limitation period, and parties can agree a further extension (a “standstill agreement”) ahead of proceedings being issued. No such process is available in Employment Tribunals – but there should be, as it gives claimants more time to consider what they want to do, and what is in their best interests to do.

 

Concluding remarks

 

  1. Farore Law welcomes the Women and Equalities Committee’s inquiry into the wider use of NDAs in discrimination and harassment cases. Given our continued experience in advising claimants who have signed NDAs in varied cases, we maintain a strong interest in developments relating to all forms of discrimination and harassment, and hope that this submission is of assistance to the Committee.

 

  1. Farore Law consents to the publication of this written evidence.

 

November 2018

 

 

 

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