MPs on the women and equalities committee last week made a well-intentioned plea for the banning of non-disclosure agreements in settlements around sexual misconduct and discrimination in the music industry. Yet a ban would risk doing more harm than good, particularly for the women it aims to protect.
Misogyny remains pervasive in creative businesses and many others. However, to be successful any solution has to work commercially — and a ban would not.
At least 50 per cent of the cases I currently settle would not do so if non-disclosure agreements were banned. Many employers would simply take their chances before a tribunal, where only around 25 per cent of discrimination cases succeed.
Victims would then be faced with a difficult choice: stay silent, walk away with nothing, or bring tribunal proceedings in a system that is completely overstretched.
The vilification of non-disclosure agreements in the media is often misplaced. They serve a legitimate and valuable tool for victims to get swift justice. Employees always have the choice to take their claims to a tribunal if they prefer. Justice means different things to different people.
For many victims of sex discrimination, the tribunal route is deeply unappealing, both emotionally and financially.
Settlements with non-disclosure agreements, when carefully negotiated, offer a pragmatic route to closure, allowing employees the power to move on with an agreed reference and a financial cushion to see them through to their next role — without having to relive their traumatic experiences during a trial.
A ban would also result in those forced to bring tribunal proceedings being hesitant to return to the workforce, given that any income they earn would be deducted from any future loss awarded.
The law already prevents non-disclosure agreements from being used to prevent employees from whistleblowing or reporting matters to the police. Employers can always take disciplinary action against perpetrators. The issue is often that those responsible are in positions of power and represent profit centres which employers are often reluctant to risk losing.
More fundamentally, we must confront the root causes of inequality. We need greater representation of women in leadership roles in the worst-offending areas of business, robust anonymous reporting technology, and a workplace culture that takes a zero-tolerance approach to discrimination and harassment.
In aiming to protect women, we must not inadvertently remove one of the few tools they currently have to secure justice on their own terms.
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