A parliamentary select committee has blasted employers and regulators for failing to tackle sexual harassment in the workplace and has called for a clamp-down on the use of non-disclosure agreements (NDAs).
The report by the Women and Equalities Committee on sexual harassment in the workplace published today (25 July) is the culmination of an enquiry launched by MPs in the wake of the #MeToo movement that saw the legal profession’s handling of these situations thrust into the spotlight.
The enquiry saw City Allen & Overy in the firing line for its conduct in the Weinstein saga after it emerged that employment partner Mark Mansell had been responsible for drafting a gagging order for the disgraced Hollywood mogul in 1998.
But it was not only employment counsel given cause to squirm as a string of sexual harassment allegations within law firms emerged, some involving NDAs.
Commenting on the report, Maria Miller, chair of the Women and Equalities Committee, said: ‘It is utterly shameful that in 2018, unwanted sexual comments, touching, groping and assault are seen as an everyday occurrence and part of the culture in many workplaces. Government, regulators and employers have been dodging their responsibilities for far too long.’
The report sets out a five-point plan to ensure that tackling sexual harassment is at the top of the agenda for employers, including a recommendation to ‘clean up the use of non-disclosure agreements’ by requiring the use of ‘standard, plain English confidentiality clauses that set out the meaning, limit and effect of the clause and by making it an offence to misuse such clauses.’ It deems that whistleblowing provisions should be extended so that disclosures to the police and regulators such as the Equality and Human Rights Commission are protected.
These steps follow the committee’s grilling of Mansell in March when several aspects of the NDA he drafted for Weinstein were questioned. A&O had in 1998 represented the producer after Zelda Perkins, who had worked at Weinstein’s company, Miramax, alleged knowledge that Weinstein had sexually assaulted a colleague at the company. Weinstein denies that he engaged in non-consensual sexual acts.
One of the main ethical sticking points was a clause that read: ‘if any criminal legal process involving Harvey Weinstein or Miramax requires [Perkins] to give evidence, she will give 48 hours’ notice to Mark Mansell, a lawyer at Allen & Overy, before making any disclosure.’
When questioned by the committee on whether limiting disclosure could be seen as perverting the course of justice, Mansell said he could ‘see how people might view it that way’.
The call for clarity is also in response to claims that Perkins was left with the idea that the gagging order she signed meant a criminal investigation was more difficult to pursue.
The report also calls for regulators to take a more active role in tackling sexual harassment in the workplace. This should include ‘setting out the actions they will take to help tackle this problem, including the enforcement action they will take; and by making it clear to those they regulate that sexual harassment is a breach of professional standards and a reportable offence with sanctions.’
That recommendation came after the Solicitors Regulation Authority (SRA) was criticised following a second committee hearing in April when it was discovered that the regulator failed to investigate A&O’s conduct in the agreement when it had the chance last November. In the report, the committee states it was ‘particularly disappointed by apparent lack of rigour in the SRA’s approach to investigating whether there had been unethical practice by the lawyers involved in the Zelda Perkins case.’
In April, MP Philip Davis lambasted SRA boss Paul Philip for not pursuing the investigation sooner, labelling the regulator’s relationship with the Magic Circle firm as ‘like some sort of cosy old boys network kind of thing, where they’re scratching each other’s backs and not really taking anything seriously.’
The SRA in March issued a warning notice reminding lawyers of their responsibility to ensure that, among other things, these agreements are not used to prevent parties from reporting to the regulator or the police in the event of alleged sexual misconduct; shouldn’t prevent the person having a copy of the NDA or making a protected disclosure; and shouldn’t be used to prevent the person from co-operating with a criminal investigation.
The committee said it was encouraged by that development, and hoped the Bar Standards Board and the Bar Council would follow suit. It also urged regulators to ‘demonstrate that members of the legal profession will face serious sanctions if they sexually harass clients or colleagues or if they misuse NDAs to silence victims of sexual harassment.’
Miller concluded: ‘NDAs have their place in settling complaints, but they must not be used to prevent or dissuade victims from reporting incidents as is clearly the case now. We expect proper regulation of NDAs and that any unethical practices lead to strong and appropriate sanctions.’