CAN’T BUY MY SILENCE

CAN’T BUY MY SILENCE

Marina Wheeler KC says she has no fixed political allegiances. For her it is about working on particular issues not about working with particular parties. She is committed to a rule of law agenda and also having done a combination of employment and public law she feels very strongly about misconduct in the workplace and professional ethics. She feels that part of our legal system has been allowed to deteriorate in recent years and that is tragic for such an impressive system that is so strong in so many ways such as having truly independent judges who are not afraid to rule against a government’s flagship policies.

Her beliefs and principles made her the perfect person for the Labour Party to commission, in October 2023, to examine how it can be made easier for employees to blow the whistle about sexual harassment in the workplace.

Currently, the law on whistleblowing is complex and poorly understood. It does not sufficiently protect employees who want to bring into the open unacceptable behaviours, such as sexual harassment, something which affects a worrying large number of women. This initiative was spearheaded by Emily Thornberry, as Shadow Attorney General, who said;

“For too long, a woman suffering sexual harassment in the workplace has faced a terrible choice: if she speaks out, the individual responsible may be investigated, but even then, she still risks losing her job and her other employment rights, while he gets a slap on the wrist.”

This is obviously not the first time attempts have been made to tackle this issue but with Labour now in Government, it could be that the time is finally right for the change that needs to happen.

We spoke to Marina about the challenge and the opportunity.

“The big picture is that there is a growing acceptance that current mechanisms for tackling sexual harassment at work put too much burden on individual complainants. The Equality Act gives those

who have suffered a right to bring a claim but years of experience show the burden is too great, the legal costs are huge and that falls disproportionately on the employees, the legal provisions are complex and people are vulnerable. There needs to be a shift to put pressure on institutions to address the problem. There has been some movement in that direction. The Workers Protection Act 2023 imposes a duty on employers to prevent sexual harassment. But much more needs to be done. There should be much closer alignment between whistleblowing provisions and anti sexual harassment provisions in the Equality Act. There are situations where women - and it is predominantly women and younger women, where there is a power imbalance - might have complaints about conduct in the workplace and it is in the public interest for these to be drawn attention to. This is where there is an intersection with whistleblowing; if the problem is deemed to be in the public interest, it can be reported more widely and, potentially, a contact with the media could be a protected disclosure.”

“Public confidence is a bit shaky and we need to buck up our ideas. Firms need to refresh their thinking on NDAs. We need to consider precisely what it means to advise a vulnerable client.

Marina recognises that a huge issue that needs to be tackled is the use of NDAs. For far too long, NDAs have been used to silence alleged victims of sexual harassment, in essence using legal instruments to protect alleged perpetrators. This is clearly unfair, unjust and simply wrong - yet this abuse of NDAs has been a major contributing factor in sexual harassment having licence to continue. As part of her work, Marina has met several times with Zelda Perkins who was the first person to breach her NDA, which was drawn up when Zelda made complaints about Harvey Weinstein. In this instance, the NDA was used to cover up wrongdoing and the impact of that on Zelda was huge. Marina is very aware that finding the right solution to handle NDAs so they don't conceal wrongdoing in a way that allows it to continue but still permits women who have suffered to choose confidentiality is a pretty tricky one.

“Zelda was badly let down by solicitors and barristers. Having spoken to many women who received inadequate service from their lawyers, Zelda became very vocal on the subject and, in response, both the

SRA and the LSB have issued warnings and remain focused on the issue. Law firms are going to have to pay serious attention to the trend against NDAs. Zelda advocates banning the “misuse” of NDAs in cases involving sexual misconduct and, indeed, this is what the Treasury Select Committee recommended in their Sexism in the City Report. The challenge is to find a legislative formula which achieves this while preserving a woman’s right to choose confidentiality, to receive a compensation payment and to move on. Meanwhile evidence shows there are still a lot of firms out there that adopt an approach to NDAs that is not aligned with their regulatory obligations. There is low awareness of the SRA’s warning notice (about a third of employment lawyers who were asked) and a lot of solicitors believe it didn't apply in certain situations, for example where the parties are legally represented - this shows there are solicitors who are not really alert to the risks of NDAs. Too many firms use templates - and ones that may have been around for a long time. They do not always recognise the whole spectrum of uses that need to be considered; confidentiality, nonderogatory clauses, clawbacks. There is a well founded anxiety that solicitors in this area are not sufficiently challenging the use of NDAs, not sufficiently advising clients about what the risks are and pushing back against employers dictating the terms. If NDAs are not going to be banned (and that is still an open question) the dial definitely has to be shifted from it being a routine thing to an exceptional circumstance.”

Marina believes that the reputation of the legal profession is under scrutiny currently and that we need to be more alert to our ethical obligations.

“Public confidence is a bit shaky and we need to buck up our ideas. Firms need to refresh their thinking on NDAs. We need to consider precisely what it means to advise a vulnerable client. A high flying career woman in the City may not appear vulnerable but if they have been on the receiving end of sexual harassment and are about to lose their job they need extra care. A woman might choose an NDA on exit, it may seem the right thing at the time but five years later things may be very different and she can feel eaten up by being gagged.”

No article on this subject could be complete without an interview with the aforementioned Zelda Perkins. The huge repercussions of not just the trauma at work that Zelda endured but of the consequences of her signing an NDA have shaped her entire life’s work, if not her entire life. Zelda now works full time with the organisation she set up almost three years ago; “Can’t Buy My Silence” which is committed to end the misuse of NDAs to gag victims. Zelda has liaised with both Emily and Marina to establish what kind of legislative changes can be made to ensure a fairer way forward. Zelda says both politicians and the legal profession are in a very different place now regarding NDAs than where they were five years ago when she first started openly campaigning against them; there is a growing realisation that change has to happen; there is no moral or ethical argument against that.

“If you look at the increasing amount of companies and legislatures that have restrictions against NDAs, the sky has far from fallen in. Lawyers always voice fears that if you take away NDAs it will stop victims from coming forward and that there will be no incentive for businesses to settle. Data has proven the exact opposite to be the case. Twenty four states in America have legislated in various degrees against the use of NDAs, out of these, 9 have banned their use completely for sexual harassment and we can now see settlement rates have risen by 9%. Not only that but President Biden has legislated at federal level to outlaw pre hiring NDAs with regard to sexual harassment; this is not just a small campaign issue."

The increasing number of people like Zelda who are now choosing to break their NDAs is a result of the desperation these women are feeling. They can’t do it legally because it costs too much so they have no choice but to go public. This means the risk factor for companies and perpetrators is changing. The risk of someone signing an NDA but not staying quiet is much higher and then the perpetrator will be publicly exposed and look twice as bad because they will also be shown for trying to hide their misconduct.

Zelda feels hugely encouraged by how microscopically Marina is investigating the entire subject, exploring and questioning every facet. While NDAs are just one aspect of the work Marina is looking at, Zelda believes they are at the root of everything,

“If you remove that one tool, you are going a long way to protect workers against misconduct and abuse. If it were an offence for lawyers to create NDAs that hide misconduct, you would still have confidentiality for settlements but you would not be able to silence victims permanently. It is totally upside down that as things stand there is greater protection for an alleged perpetrator than there is for an alleged victim. We have been looking the wrong way down the lens for so long that it has become standard. Labour has the opportunity to turn that telescope round and make a really impactful change that gives faith to the working population.”

With people working to make the workplace a better place in terms of misconduct and abuse, we too can be inspired to play our part in the legal profession and ensure that NDAs are used for good rather than bad.