In the middle of last week, a story broke about a businessman who had made financial settlements using Settlement Agreements including NDAs (non-disclosure agreements) on a number of occasions following claims of sexual harassment and racial abuse.
Despite the undeniably serious nature of the original actions, in a world of global news reporting it may not have warranted front page news, except the businessman in question took an injunction out against the newspaper that had investigated the claims preventing it from publishing the details. And then in return, a Lord used parliamentary privilege to name the businessman.
I’ve followed the story, beginning to end and you know what? The whole thing stinks.
It stinks because instead of having the right debate, we’ve wrapped the story up in one of legal rights and wrongs. We’re discussing the integrity of the courts versus parliament, we’re discussing the integrity of NDAs, we’re discussing the integrity of legal precedent.
When we should be discussing the integrity of the people involved. The individual(s) that carried out the act in the first place. The leaders and HR professionals that sustained the culture in the organisation(s). And of course, the victims.
But also the lawyers that drafted the agreements, that defended the agreements and who have now lost sight of the individuals at the heart of the matter and are making intellectual arguments about legal supremacy, when if they and their peers done the right thing in the first place, this wouldn’t have been an issue.
Now I know that I’ll be faced with arguments that these agreements are entirely legal and proper, that it isn’t for lawyers to determine right or wrong but simply to enact what is legal and what is not. That the sanctity of the independence of the courts is paramount etc. I know, I’ve heard the arguments before. But I call b******t.
I’m sat here wracking my brains trying to think of a time in my 25 years of practice where I’ve been involved in a case where we’ve used a settlement agreement to settle a case of sexual harassment or racial abuse, and simply I can’t think of one. So to have multiple ones in the same organisation?
You can talk about the sanctity of the agreement and the “independent legal advice” that the individual has to take before they sign, but I want to talk about the moral responsibility of people propping up a rotten culture. I hold my profession to account, I hold leaders to account, but I also hold the legal profession to account. You can’t make clever arguments to claim immunity, you own this problem too.
So instead of continuing to engage in intellectual masturbation on the rights and wrongs of a member of the House of Lords naming the individual in question, let’s ask ourselves why they had to. Instead of debating the use of NDAs versus public interest, let’s ask ourselves why they’d ever be used in a case of this kind. And instead of pointing the finger at others, let’s start by asking ourselves a few searching questions.