The Philip Green saga proves NDAs shouldn’t be used in sexual harassment cases

Posted by
Moya Crockett
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If the rich and powerful can simply silence their accusers, what was the point of the #MeToo movement? 

Imagine that you are repeatedly and frighteningly sexually harassed by your boss. You go to HR to complain, but swiftly realise that they’re not going to lift a finger to stop him. Distraught and disgusted, you hand in your notice, making your reason for leaving very clear.

At this point, your boss’s crack team of lawyers swoop in. They ask you to sign a non-disclosure agreement (NDA), commonly referred to as a gagging order. They offer you a lot of money to sign this contract – more cash than you’ve ever had in your bank account at any one time.

Given that you’re about to be jobless through no fault of your own, the thought of the money is unbearably tempting. It would cover your rent for a year. All you have to do is agree to never, ever breathe a word to anyone – not the police, not the press, not your partner – about your boss’ behaviour.

You feel uncomfortable about this, but then you realise what could happen if you refuse to sign the NDA; if you stand up to your boss one more time. The man knows everyone in your industry. If he puts the word out that you’re no good, you’ll struggle to find another job. You realise that no other option makes sense. And so you sign the NDA. You agree to stay silent.

It sounds like a nightmare. Yet this experience – or something very close to it – is something that countless women in the UK have gone through over the years. 

Philip Green (third left) on the front row at the Topshop Unique s/s 2016 show

NDAs have been used for decades to prevent people from publicly disclosing information that would compromise the business interests of firms and/or individuals. However, the contracts have also become commonly used to ‘settle’ disputes over accusations of sexual misconduct and other unpleasant workplace behaviours, such as bullying and maternity discrimination.

In cases like these, the person alleging mistreatment will generally be paid a large sum of money in exchange for their silence, often as they are leaving the company. This transaction can be viewed critically: one could argue that you forfeit the moral high ground when you take a pay-out to stay quiet about harassment or discrimination.

But when I was researching an article on this subject earlier this year, I spoke to several women who felt like they had no choice but to sign an NDA. They couldn’t afford to take their discriminatory or sleazy former employers to court or an employment tribunal – and even if they could, they knew they weren’t guaranteed to win.

Perhaps more than anything else, these women were terrified that if they didn’t agree to the gagging orders, their ex-bosses would ruin their professional reputations. They decided it simply wasn’t worth the risk. 

Green with daughter Chloe and wife Tina 

Non-disclosure agreements have been in the spotlight once more this week thanks to the revelation that Topshop owner Sir Philip Green frequently used such contracts to shut down allegations of sexual harassment, racial abuse, bullying and intimidation.

Following a lengthy investigation, The Telegraph reported on Wednesday (24 October) that “a leading businessman” had “used controversial NDAs to silence and pay off his alleged victims” on five occasions. Thanks to a High Court injunction, the newspaper wasn’t initially allowed to report on the details of the non-disclosure deals. Nor could it name the man at the heart of what it described as “Britain’s #MeToo scandal” – alluding to Harvey Weinstein, who also regularly used NDAs to gag his alleged victims.

But during an appearance in the House of Lords on Thursday afternoon, Labour peer Lord Hain invoked parliamentary privilege to disclose that Green was the businessman in question. Parliamentary privilege is a right that allows MPs and peers to speak freely during parliamentary proceedings – and permits the media to report what they say – without any risk of being sued for defamation. 

Green has denied engaging in any “unlawful sexual or racist behaviour”. But the news that the retail magnate deployed NDAs to prevent his accusers from speaking out has prompted prominent UK politicians to condemn the use of such agreements in cases of sexual misconduct and workplace bullying. Before Green was named in the case, Prime Minister Theresa May agreed to bring forward a consultation on the use of NDAs in workplace disputes, acknowledging that “it is clear that some employers are using them unethically”.

Green with Radio 1 DJ Nick Grimshaw and Harry Styles 

The Prime Minister isn’t the only politician to speak out on the issue. In the wake of The Telegraph’s reporting, SNP MP Hannah Bardell revealed that she once had to sign a non-disclosure agreement after being “bullied and harassed” in a previous job, and called on the government to do more to prevent them being abused. Women and Equalities Committee chair Maria Miller, who previously led a report into the subject of NDAs, has also said the contracts should not be used “where there are accusations of sexual misconduct and wider bullying”.

It’s important to note that non-disclosure agreements aren’t necessarily nefarious. Earlier this year, I interviewed a PR professional who was regularly required to sign such contracts as part of her job, usually promising that she wouldn’t reveal details of a new product launch or upcoming event before a certain date. She received no money – and felt no emotional strain or sense of injustice – as a result of signing these agreements.

In such contexts, NDAs are harmless, ordinary, everyday. But when enormously rich and powerful men are able to harass, bully and abuse people – and then wield that wealth to make any allegations against them disappear – something has gone very wrong.

Let’s watch what happens next with eagle eyes, and ensure that the government lives up to its promise to stop non-disclosure agreements being used to cover up sexual misconduct and bullying. Because if the most privileged people in British society can use their money as a shield, ensuring that they are never properly held to account for sexual misconduct, the #MeToo movement may as well never have happened.

Images: Getty Images