Select Committee ‘particularly concerned’ about lawyers’ ethics

The House of Commons Women and Equalities Committee report on Sexual harassment in the workplace, has been published. To my eye it looks like an excellent piece of work: takes a wide-ranging, purposeful, look at the problems of sexual harassment in the workplace. It calls for wide-ranging reform, including:

  • A [Bribery Act style] duty on employers to prevent harassment, supported by a statutory code of practice outlining the steps they can take to do this.
  • The levelling up of legal protections for interns, volunteers and those harassed by third parties so that they have the same protection as their workplace colleagues.
  • Requiring regulators to take a more active role (including the SRA and BSB).
  • Improving enforcement processes for employees (including suggesting increases to tribunal limitation periods, introducing punitive damages for employers, reducing cost risks for employees and one way costs shifting).
  • Collecting robust data on the extent of the harassment in the workplace and within tribunal claims.

And, most germane to this blog, “to clean up the use of non-disclosure agreements (NDAs)”, including by, “requiring the use of standard, plain English confidentiality clauses, which set out the meaning, limit and effect of the clause, and making it an offence to misuse such clauses.”

Given my own submission to the Committee, it was gratifying to see the proportionate emphasis on professional ethics issues. They dealt diplomatically with Mark Mansell, which I thought was well-judged, and more forcefully with the SRA, with the central conclusion being,

“We have been particularly concerned by the evidence we have heard about members of the legal profession facilitating the unethical use of NDAs.”

And that,

“The use of non-disclosure agreements (NDAs) must be better controlled and regulated to ensure that they are not used unethically in cases where sexual harassment is alleged. It is vital that employees have access to information about the responsible and legal use of confidentiality clauses and that lawyers are held to account for using or attempting to use such clauses in an unethical way. We are encouraged that the SRA has issued guidance on reporting sexual harassment and the use of NDAs in sexual harassment cases and hope that the Bar Standards Board and the Bar Council also issue guidance. However, the regulators must also 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.”

More specifically, they suggest that the, “[u]se of provisions in confidentiality agreements that can reasonably be regarded as potentially unenforceable should be clearly understood to be a professional disciplinary offence for lawyers advising on such agreements.” I’ll leave a discussion of what I think any rule should look like for another day. It will be interesting to see how the SRA and the BSB respond. The Committee should call them back to tell them how they have responded whilst the new SRA Code of Conduct is in draft.

I end on a different note. The Employment Law Association has also published a document on Sexual Harassment and the Law this week. It reads a bit like it should have been a submission to the Committee, although perhaps it is directed at Government as the relevant Minister digests the Committee’s suggestions. I wanted to emphasise one positive emerging from that report. Prompted by Zelda Perkins, the SRA’s Warning Notice, and perhaps now to be reinforced by the Committee’s report.  It suggests some soul-searching, at least among the membership:

Evidence given by Zelda Perkins to the Women & Equalities Select Committee has prompted some considerable re-focus on ethics, specifically the way that solicitors’ conduct requirements interact with confidentiality provisions. At the time of writing, a ‘warning notice’ to solicitors has been issued by the SRA and guidance aimed at the public and lawyers is the subject of consideration by the Law Society, SRA, ELA and other interested parties. Law firms, the SRA and the Law Society all help solicitors understand their ethical obligations. As a members’ association, ELA is not required to provide ethics training to members but has voluntarily included or referred to ethics in its training programme, to some extent. 81% of ELA’s survey respondents supported inclusion of ethics training focused specifically on employment lawyers in ELA’s programme.

One thought on “Select Committee ‘particularly concerned’ about lawyers’ ethics

  1. To accuse a committee of Members of Parliament of pontificating about matters of which they know nothing is like blaming a skunk because it stinks but perhaps round here some common sense will prevail.

    If an employer settles a claim by an employee on terms that the employee is to remain there is a risk that if the employee does not get a promotion or a posting there will be a further claim of “victimisation” which is hard to meet except by showing which individuals knew of the earlier claim and that the person who took the adverse decision was not one of them.

    The employer therefore has a legitimate interest in confining that knowledge to those with a need to know.

    An employee who is setting in good faith will agree to and abide by an NDA which achieves that. And an employee who will not do that is not settling in good faith.

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