ACTIONS AND CONSEQUENCES:THE USE OF NON-DISCLOSURE AGREEMENTS.
David Green, DVP of the Law Society, introduces last nights debate on the use of Non-Disclosure Agreements.
Last night I attended an excellent event at The Law Society which had been organised by its employment law committee, of which I am a Member.
In the light of allegations concerning Harvey Weinstein and Philip Green, non-disclosure agreements are very much in the public eye. These are agreements which try to restrict the ability of those with a potential claim against a company , or one of its executives, from making their concerns, or claims , public.
These cases have brought to light the fact that such agreements have been used to attempt to prevent those potential claimants from making allegations of criminal behaviour against alleged assailants.
The Solicitors Regulation Authority has recently issued warning notices to the solicitor’s profession indicating that the use of such clauses is prohibited in preventing the reporting of criminal behaviour, the reporting of misconduct to regulators and the cooperation of witnesses in criminal cases and police investigations.
This event was a clever one which looked at the problem from several different perspectives.
Legal issues were covered by Max Winthrop , who is the Chair of the Employment Law Committee of the Law Society, and Juliet Carp, who is the Chair of the employment lawyer association.
Ethical issues were dealt with by Professor Richard Moorhead, who is Chair of Law and Professional Ethics at University College , London.
The human element was covered by Zelda Perkins, who is a whistleblower involved in the Harvey Weinstein case.
An eclectic audience, subject to Chatham house rules ,resulted in a thought provoking and thoroughly engrossing debate on
A In what circumstances , if any, are such agreements justifiable.
B In what circumstances should they never be used?
C What are the ethical obligations of those advising regarding such agreements?
D What are the implications and effect on those who sign up to such agreements?
There was a general consensus that carefully considered reforms are required in this area and that clear and uniform guidance to the profession is required.
There were a variety of opinions expressed, both from the panel and from the floor.
“Solicitors have a responsibility to stay on the right side of ethics when drafting confidentiality clauses,” said Zelda Perkins.
“We must remember that there is disparity of power between a claimant and their employer. Even if well advised, claimants are automatically in a position of weakness.”
“There can be enormous pressure upon claimants to sign non-disclosure agreements without fully understanding the long-term implications.
Max Winthrop stated that “there will be situations in which confidentiality clauses are entirely appropriate – and in some cases, in the interest of the claimant and employer,”
“However, the boundaries of these agreements must be made clear to clients and to claimants- in particular, they cannot prevent the reporting of criminal behaviour.”
“With the enormous public scrutiny on this issue, it’s right that solicitors consider where responsibilities lie-to their client and to the public interest.”
Here at Beaumonde Law Practice, we have ample experience in relation to advising regarding the use of such clauses both for employers and for potential claimants.
We will always fully explore the ethical, legal and emotional long term effect of the use of such clauses on our clients.
If you have any employment law requirements then please do not hesitate to contact me at Beaumonde Law Practice on 02088681614, and I will be happy to assist.
by Sundeep Bhatia, senior employment law solicitor at Beaumonde Law Practice, South Harrow.