Sexual harassment in the workplace is rightly receiving significant media coverage at present, sparked largely by the #MeToo movement on social media.
The question of how employers and employees resolve allegations of sexual harassment is perennially difficult. There is much to be said for the finality of such matters being resolved in a settlement agreement or non-disclosure agreement, but employers should be aware of the limits to which they can prevent an employee complaining of sexual harassment from speaking out, even after an agreement has been signed by all parties.
The recent high-profile case involving a former personal assistant to the film director Harvey Weinstein has thrown this matter into sharp focus. Zelda Perkins, a London-based employee of Miramax, raised allegations of sexual harassment against Harvey Weinstein which resulted in a settlement agreement being entered into. It has been reported that the agreement contained extremely unusual and onerous non-disclosure terms. Ms Perkins was:
- prevented from seeing a doctor about the conduct alleged (unless she got that doctor to sign a confidentiality agreement);
- required to limit any evidence that she gave in any criminal processes relating to Mr Weinstein “as far as possible”; and
- not allowed to retain a copy of the agreement for her own use.
It is vital for any HR professional advising their business on the use of a settlement agreement or non-disclosure agreement to know how far such agreements can go to cover up employee misconduct. For example, any clause in such agreements that seeks to prevent an employee from making a protected disclosure/blowing the whistle will be void.
A witness order from a court will override any confidentiality or non-disclosure term in a settlement agreement.
Additionally, such agreements cannot stop an employee suing the employer for sexual harassment unless they have received independent legal advice.
Any clause in an employment contract which tries to prevent the employee enforcing their rights against the employer in the Employment Tribunal will be void.
Solicitors need to be wary of their professional obligations. The Solicitors Regulation Authority issued a reminder to solicitors on 12 March 2018, stating that it will be improper for a settlement agreement to seek to prevent a person from reporting a matter to a law enforcement agency. With the Weinstein case firmly in its sights, the SRA have confirmed that any term preventing the employee from retaining a copy of the agreement (such as in Ms Perkins’ case) would be entirely inappropriate.
If you are worried that you may have entered into an agreement in the past that has gone too far, contact the Girlings Employment Law team for advice.
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