Women and Equalities Committee
Oral evidence: The use of non-disclosure agreements in discrimination cases, HC 1720
Wednesday 20 March 2019
Ordered by the House of Commons to be published on Wednesday 20 March 2019.
Members present: Mrs Maria Miller (Chair); Tonia Antoniazzi; Sarah Champion; Philip Davies; Eddie Hughes; Jess Phillips.
Questions 579–626
Witnesses
II: Witness C; and Witness D, Employment Lawyer.
Examination of Witnesses
Witnesses: Witness C and Witness D.
Chair: I apologise for how hot it is in here. Please feel free to liberate yourself from whatever you need to liberate yourself from. Thank you so much for coming in today. We are trying to keep this very informal, and I apologise for the fact that the Victorians did not really do informality, so it is a relatively formal set‑up.
As you know, we are doing this session in private. We have a gentleman in the corner from Hansard who is taping the sessions so that we are accurate. Obviously, we are very happy for you to see the transcript and make redactions as you feel appropriate. Basically, everybody in the room, from here down to the gentleman with the pink shirt, are members of the House of Commons staff who help us administer everything, and in this group we are Members of Parliament, and we will say who we are. I am Maria Miller, Member of Parliament for Basingstoke. I am Chair of this.
Jess Phillips: I am Jess Phillips and I am a Labour MP in Birmingham.
Sarah Champion: Sarah Champion, Labour MP from Rotherham.
Tonia Antoniazzi: Tonia Antoniazzi, MP for Gower—Labour.
Eddie Hughes: Eddie Hughes, Conservative MP for Walsall.
Chair: What we usually do is go through a set of questions for about 45 minutes. If at any point you feel that what we are talking about is not what you want to talk about, do let me know. Hopefully, you will find it a useful way of setting out what you went through.
Q579 Eddie Hughes: Can you begin by telling us what made you want to give evidence to the Committee about your experience of signing an NDA?
Witness C: I will start by saying that I have to speak in the third person because I am not even allowed to say whether I signed an NDA or not, because NDAs can be that draconian.
If you sign an NDA like that, it has a lifechanging effect. A lot of my litigation is in the public domain. If you are in litigation for a long period of time—[time period]—and you are really fighting for your life, and you suffer from mental illness and you are struggling, you want things to end. If you are presented with an opportunity for things to end by signing an NDA, and you have an intractable partner on the other side, a defendant—call them what you will—that will not stop at anything and spends [figure]of pounds, when you are just one person with [personal circumstances], and you know it is never going to end, [details of case] , because people can just go on and on, you are just ground into the ground.
For me, if somebody signs an NDA like that—I am sorry I keep having to say it like that—they cannot talk about what happened to them and they cannot explain to any prospective employer how things came about. All a prospective employer can do is look at the press coverage, which often large corporations can utilise in their fight. You get sensational headlines that do not represent what is said in court or in a tribunal, and you find yourself totally on the back foot.
Although I cannot say whether I signed an NDA or not, I can tell you that I lost [financial losses] and life changed forever for us. What you see in the press and the things that were said on the television are certainly not representative of what happened to me.
One of the shocking things about NDAs is that the strongest form of NDA is that companies and individuals who perpetrate illegal acts can use an NDA, if it is drafted in a particular way, to ensure that they can never be cross-examined‑ by shareholders about inappropriate utilisation of company resources. That is what they do. I do not think that in anything I have read that has come out. They use those NDAs in that way so that there is no scrutiny of their behaviour. A company can spend, for example, [figure] —I am not saying that that company did—but they could spend that, and no one looks at it.
Logically, if you are litigating, everybody knows, “Avoid litigation,” and everybody knows, “Settle.” It is a sensible way forward, but sometimes people have done this before in large corporations, and then they do it again—you can read some of the press cuttings about that—and they are never held to account; their careers are not affected and they go on to be promoted, they make all their bonuses and the person who won is just cast aside. If you lose a career that you love, and you have [details of career background] have done everything, you are finished—you are just finished. That is what NDAs can do.
Q580 Eddie Hughes: I am not sure that you are going to be able to answer the second question. Would you be able to give us a brief overview of your original discrimination complaint?
Witness C: I think things are in the public domain, and I am sure that [Witness D] will tell me if I cannot say. What happened was that I led a [details of job role] in a company. [Details on nature of redundancy in a company]
I met all my objectives. I had [details of personal circumstances circumstances]. I worked very long hours, and I think anybody knows that if you have a situation like that you are always trying to show that nothing is affecting your work, so you really are pushing and pushing, because you never want it to be levelled at you that you did not do your stuff. [redacted] I see that all the time.
Slowly but surely, things were being chipped away. [Details of personal circumstances] They constructed things around what I had and had not done, and, in the end, all I wanted, funnily enough, was this. They made people redundant and they presented them with packages of around [£ figure] and they offered me [£ figure] to go, which I did not think was fair. Do you know what? I would have settled for half of what [they] got. [personal details]. I just wanted it to stop, but I did not think [£ figure] was fair.
People can fall into litigation because you think that people are going to be reasonable. [Details of case] It is clear that all they are doing—this is what is so shocking about the use of NDAs where you have bullying corporations; I am not saying all corporations are like that, of course—is firing shots across your bows the whole time. [Details about the actions of journalists]. You cannot believe the lengths to which people will go. It is truly shocking. But I ended up there. I would never recommend it to anybody. I have been asked since by people who have been in that situation, “What do you think?”, and I say, “Make a settlement or get another job, but don’t do what I did because you will never, ever recover,” and I haven’t.
Q581 Eddie Hughes: So that I am clear, they were discriminating against you on the grounds that you were not able to do your job because of personal circumstances.
Witness C: No, what they did was this. I passed all my reviews and everything like that. What I was saying was they discriminated against me because [reason for discrimination]. They are all in the public domain and you can read about them. All of those things were found to be true, and then [details of case], but the one thing that was not surmountable—as I say, I cannot say whether I signed it or not—and was not negotiable was the position on the NDA.
The reason, I believe, that employers do that, as I have said, is so that they can avoid scrutiny of senior individuals who behave really badly, and they can avoid scrutiny of misuse of company funds. They are not questioned by anybody. All they say is, “We can’t talk about it; an NDA has been signed.” I know I am repeating myself, but that is fundamental, and it is why I am totally against them. Everybody says the City is held up to account. I read in the papers about senior law firms saying, “Oh, you don’t need to do that because it protects everybody.” No, it does not. It protects a very badly behaved corporation. That is what it does, and it silences the weaker party.
Q582 Chair: I am not talking about your individual case, but what you are asserting is that a non‑disclosure agreement would effectively mean that an organisation would not be able to scrutinise the use of its own money internally, because the NDA applies internally as well as externally.
Witness C: Yes, you cannot talk about it.
Q583 Chair: Shareholders would therefore not be aware of the way the money of the company was being used, because of the non‑disclosure agreement.
Witness C: Yes, because what you would get is them saying, and they do it very cleverly—they are very clever about it—“It is most unfortunate; we cannot discuss that. We signed an NDA that does not allow discussion of anything.” They just do that. Obviously, it depends on the terms of the NDA, but most employers just want it to gag everything.
It is interesting that if a case is high profile, for example, and it is in the public domain and in the tabloids and the broadsheets, what can possibly be the reason for a company absolutely to insist on an NDA and be prepared to go as far as [details of case]? What can the purpose be if it is not to protect the company? There is no rhyme or reason for forcing an individual to sign that. The only thing it can do is harm that individual because they cannot give any explanation, so any prospective employer is relying on what I like to call “The Daily Fail”—the Daily Mail. They rely on what they read, and even in the broadsheets there are lots of inaccuracies.
The only purpose in those types of cases, where it has been proven that there have been illegal acts, and they have been found time after time, is to protect the individuals who perpetrated those acts and the business that supported them in perpetrating those acts, so that shareholders and investors cannot ask anything. Nothing can appear in the annual report. The sum of money is not stated in the annual report. You do not know how much was spent. I know; I have a good idea about it because I know what I spent on mine. I know the [amount] that it cost me, because it cost me [financial loss].
Q584 Sarah Champion: You took your case to an employment tribunal. Why did you make that decision and what did you hope to achieve?
Witness C: With hindsight, I would not do it again. I suppose I thought I would get justice and I thought that I would be treated fairly. On the face of it, I did. What I did not think about, I suppose, because you are in it, was this. I thought they would settle before the tribunal. Once I got the offer of [£ figure], I thought they would settle and come up with something more reasonable. Then, [details of process]. All of the time I kept thinking, well, I know what this is costing me, and they had [figure] large law firms—the names are in the papers so I can say that—so it has to be costing them an awful lot more, and there are more people represented there than me. You can times what I am spending by [figure], so if I spend [figure], then you can times that, can’t you, and if you have [figure] law firms doing it, you can times that? I just thought they would see sense.
What you are not prepared for—I am saying you in the third person—is the vindictive nature of people. If people have done it before and not learned by their behaviour, they will do it again and not learn by their behaviour.
I was very fortunate in that I had a very tough but very fair tribunal judge who scrutinised the evidence. I was told at the start, “Gosh, this is going to be really difficult,” but she was absolutely rigorous, and that helped. [Details of legal process] —you do not know which way litigation is going to go; you are going through it all again and again—we were lucky to get a sensible, pragmatic person, and you sort of go along. How I ended up in that place, I have no idea. [Details of health impact]
Q585 Sarah Champion: Do you attribute that to the—
Witness C: [Details of health impact]
Q586 Sarah Champion: Do you attribute that to the employment tribunal and the High Court?
Witness C: Yes. I have never been like that before; I have never had any issues. I have [personal details] and I was working in the City. I can cope with pretty much anything. I am from [personal details] so not much really scares me. A testament to that fact is that I have gone off and done something else and come out the other side. I have not sat in my bedroom crying.
Another [employee] called [name], who was at [organisation] —[Details of case and effect on employee] I am not doing that. It has been hard for me not to do the stuff that I want to do, but I am not going to be crushed and beaten.
That is why I wanted to come today. People were saying, “Are you really nervous about it?” No, I am not, because I want you to hear my voice. I want you to know how these things are used. You have all these regulators that say they scrutinise and the Financial Conduct Authority saying, “No, we scrutinise, and we are not backing Maria Miller’s Committee. We can manage that.” No, you cannot because, if they are used in the way that they can be used, you have no power to do that.
Q587 Sarah Champion: We are hearing you loud and clear.
Witness C: I am probably being a bit noisy.
Q588 Sarah Champion: Probably the main reason you were able to go through the legal route was that you had finances behind you.
Witness C: Yes. Well, I lost everything, but yes.
Q589 Sarah Champion: But you could start the process because of that. If you had not had that, what options would have been available to you?
Witness C: When I was [details of case], I approached the Equalities and Human Rights Commission. They were quite direct with us. They were only interested in discrimination cases against ethnic minorities. They did not want anything to do with sexual harassment and they just said, “We’re not interested in that. That’s not what we’re doing.”
What is interesting is that, now the [redacted] bandwagon is going, they are all interested in it. I contacted Trevor Phillips directly and I said, “I am [summary of personal circumstances]. They have got all this money and I’m just fighting for my life here. What can I do?” It was just like the door was slammed and that was it, so I cannot ever read an article he writes now. He is probably a perfectly nice man, but I just cannot do it. You cannot have something that is set up to cover everything and just say, “No, we’re not interested in that bit. You are [description of circumstances]
Q590 Sarah Champion: [Question about media coverage]
Witness C: No, not at all. I made an active decision not to speak to the press because I thought, [redacted], it is kind of a double‑edged sword. It is not true that there is no such thing as bad publicity, as we all know, so I made that decision. Other businesses can make an active decision to court the press, and they make statements like, [details reported in article]. It is in inverted commas, but it is what people read and they do not look at the quotes around the story. They actually believed that someone would [details reported in article] to bring a claim.
[Details of case] But that does not get into the “Daily Fail”, or the “Fail on Sunday”, because it is not what they want people to read.
I actually had someone spit at me. I used to go out walking the dog at about five in the morning because I had the press camped outside the house, so I could not leave the house in the day. That was for a [time] period, not a few weeks. I was cross‑examined for [time period] . I was walking in the park with the dog and somebody recognised me, called me some awful names and then spat at me. That is what the press do to you, and I don’t think they would be spitting at [redacted].
Sarah Champion: No. Thank you.
Q591 Jess Phillips:[Details of case] , but you still ended up reaching a settlement agreement with confidentiality—we should talk about it in terms of “one”. One ended up signing confidentiality clauses. Why did you decide to sign the NDA?
Witness C: If one decides to sign an NDA, it is when you are at the end of your tether, after [time period], and realising that no logic is applied on the other side to a company that has [£ figure] of assets under management, and you are just one person and you are spending [£ figure] . [Details of personal circumstances] You are just going through it and through it, and they won’t stop. The vindictive nature of NDAs is what no one explores. That is what they are; they can be used in really vindictive ways, and it is like it is game over for you, and everybody else carries on as if nothing happened.
Q592 Jess Phillips: You felt you had no choice under those circumstances.
Witness C: Yes, one does feel that you do not. When you are dealing with [details of mediator]—who lays out what the other side would accept, you just think, “What can I do?”
My past was dug into. My [details of relative]. He was doorstepped by people, not just the press. [details of relative]. Those are the lengths to which people will go to win, and, even when they keep losing, they keep on and on, and it would not have stopped, Jess. It would not have stopped.
Q593 Jess Phillips: We have some experience of that too. We understand and can empathise with the situation. It is terrible that an ordinary person who has not necessarily put themselves into the public eye would have to tolerate that. As you said, the case was being widely reported. Why do you think that your former employer might have felt that an NDA was appropriate when the cat was sort of out of the bag in your case?
Witness C: Because an NDA, if it is drafted in a particular way, stops anybody inside the company discussing things; it stops the discussion of use of company money; nobody external can ask anything; an analyst cannot ask anything about the question. You could look at annual reports—an annual report is a public document—[details of case] Then it just falls off the radar.
Q594 Jess Phillips: It was internal rather than external, you felt, that they were worried about.
Witness C: They did not want questions asked internally or externally, and the NDA allowed them to just blanket say, “We can’t discuss it. We signed an NDA.” “How much did you spend?” “Can’t discuss it. We signed an NDA.” “How much was it settled for?” “We can’t discuss it. We signed an NDA.” “What has happened to the individuals who were found to have perpetrated the things?”—because I sued [details of case]; I was not just taking it. When someone does something to one person, it might be a bit of a mistake, but when they do it to [details of case], it is not a mistake, is it? It is a form of behaviour.
They are protected. Nothing can be said. They have gone on and been promoted. [Details of third party]. Nothing happens; there are no consequences.
Q595 Jess Phillips: Was there any opportunity to negotiate any terms—for example, [reference to details of case]?
Witness C: No, unfortunately not.
Q596 Jess Phillips: When one signs an NDA, is there an opportunity to negotiate terms?
Witness C: You say you won’t bad-mouth each other and you won’t talk about it to anybody else. What I found surprising was that one can ask for [details of case]
My company—as I say, it is in the public domain—has a fantastic reputation, and really is highly thought of and highly regarded, but things like that can happen and senior people do not even have the slightest blip in their career. What happens when you are in murkier areas with the murkier companies that exist? If it can happen there, where probity is key and reputation is all, it can happen anywhere. That is why I am completely against them.
Q597 Jess Phillips: We have been given quite a lot of evidence that suggests that NDAs give power to both sides. That is not necessarily something that we have seen huge amounts of evidence of, but there is a sort of, “Well, to protect your reputation I’m going to sign this and make demands such as this person needs to go on—and we need to make sure that the individuals involved go on—some sort of training.” Do you feel that in cases of non‑disclosure it is possible to make those sorts of adjustments?
Witness C: No, and I can tell you because I have great experience of that; I was responsible. I worked for a company that [company and career details]. What was going on was shocking and I gripped that because it was a huge issue for the company.
You have a business that presents one face to the public and another behind the scenes, and they have no interest in engaging at all; there was no recognition of any sort of poor behaviour, behaviour that broke the law, no recognition whatsoever, and people go on and are promoted afterwards. I can say that and it might not be true, but when people stay in their role and go on and are promoted, even when they have done this, and done it more than once, I think what I am saying is right. They can just say no to you.
Q598 Jess Phillips: Yes, and there is no way of checking anyway, is there?
Witness C: You cannot do anything. I know because they have just gone on and have been promoted. [Details of case]
Q599 Jess Phillips: But you could not check on it anyway.
Witness C: No.
Q600 Jess Phillips: Do you think one would get a settlement in a similar case to yours if one did not sign an NDA?
Witness C: No, because people flatly refuse. That is what they do. They will not do it. [Details of case]
Q601 Jess Phillips: If NDAs were banned in a case similar to yours, you would have got nothing.
Witness C: If NDAs were banned, I would have got a settlement. They would have got a settlement because it would not be on the table. You would not be allowed to do it. I would have got a settlement, but if they are there they will always be used. I don’t care what lawyers say about being clever and utilising them in different ways. When a business sets out to do something and decides on a particular course of conduct, no legal adviser—you have examples of it with people like Philip Green—is going to be able to persuade someone to behave properly. They will carry on regardless.
Q602 Jess Phillips: With regard to legal advice and representation regarding your non‑disclosure, did you feel that you were satisfied and had appropriate legal advice?
Witness C: Yes, I did because I had—
Witness D: I am sitting here.
Jess Phillips: Feel free to write me a secret message.
Witness C: If I had signed an NDA, yes. The difficulty is that, when you have a party that will only sign an NDA in particular terms and they will not budge from it, you have no negotiating position because you are just one person. If I had had somebody like the Equalities and Human Rights Commission behind me, it would have made a massive difference because you would have teeth. You made the point, “Well, you could afford a lawyer,” but, yes, only to a point in the end. You can afford the lawyer, but whether you can or you can’t, you are still dealing with the same party opposite and it is still the same awful things that are happening. It does not matter; it is still those terrible things.
Q603 Jess Phillips: Do you feel that you were advised about the content and effect of confidentiality clauses?
Witness C: I think I was. I do not think I really—at the time, I just wanted it to stop. I thought that somehow I might get—I didn’t think I would be going back into the City, but I had worked in the [sector] before and thought that would be something I could do, when my health improved. I thought people would look at that.
Something happened very recently, and it was in the [sector]. It was [organisation details], and they work together in a particular way. I was asked if I would be interested in the role. It was very poorly paid, but it was really interesting stuff. I thought I had got it because they said they would send the terms and everything, and then I got a call saying, “One of the [organisation] chairmen doesn’t want to work with a person like you.” I said, [details of case] and he said, “Well, that’s what they do.”
Q604 Jess Phillips: Is that because of press reporting or because your company has broken their NDA?
Witness C: I could not say anything about my case. All they could rely on was what was in the press, so I missed out on that role. Do you know, it really shook me? It happened in [date]. I was so shocked by it because I just thought to myself: it actually will colour my life forever.
Jess Phillips: It will.
Witness C: It is never, ever going to be over. I have been able to reinvent myself by doing [employment details], which is very exciting, but it is not the stuff I like doing. I like being part of a team; I like working with people and helping people. I was so shocked by it. I went for an interview with another [organisation]. I had the final interview [date], and I did not get the role. All the questions were around this; they said, “We think you’re very brave, but we’re not going to employ you.”
Q605 Jess Phillips: In the case where one of the [organisation] did not want you doing it, do you feel that if a person signs an NDA, and their previous history in that employment seems to be held against them, they would have any recourse to take legal action against what could have possibly been breaches on the other party’s side of the NDA?
Witness C: I think you could.
Q606 Jess Phillips: It all feels as if people are worried they will have to give the settlement back and that is why they do not want to talk. I have not heard yet that a company feels worried about breaking the NDA.
Witness C: No, they are not, and they do break the NDAs. I know for a fact that they break NDAs, but the problem, of course, is that you are still back into the deep pockets and no money situation.
Q607 Jess Phillips: Of course; the legal problem again.
Witness C: Somebody who consulted me asked me what to do. They had made a settlement, they had signed an NDA and they were being employed by a company who asked them to hand their notice in. They got a temporary job because they could not get a permanent job, and this company really wanted them. They handed their notice in and the written references were taken, but a telephone call was made as well. He could prove the telephone call had been made, but there is nothing you can do because you are not going to get that job.
NDAs really only benefit one party. They do not benefit me. If you want to benefit somebody, you can have an agreed form of reference that you write, saying, “This is what we are going to say: I am not going to say anything bad about you, but this is what we are going to say,” but NDAs only work for the employer.
Jess Phillips: Okay. Thank you very much.
Q608 Tonia Antoniazzi: You have spoken a lot about [health impact of case], but what has been the effect of the NDA on your career and on a personal level? I think we have a good picture, but is there anything else you would like to say?
Witness C: No. My career was over. The career I [details of career recognition] was finished. I was on the scrapheap. I think you can tell when I talked about that job in [date] that it was a nothing job: it was [details of role], but it was something interesting and it had a really nice [details of role] element to it, and I thought, great.
Maybe I am just being naive, but I thought, it is [time period] and I have done a whole load of other stuff. I have not sat in my bedroom crying. I have [employment details] I just thought, “I am intelligent, and I will do something else with my time.” I’ve got something.
When I go to employers, I am not sitting there saying, “Oh, and that happened, and this happened and I haven’t done anything.” I say, “I have just done this.” [employment details] I have a story to tell, but because there is a story in the “Daily Fail” no one hears my story.
Q609 Tonia Antoniazzi: Do you think, when you signed the NDA, that you fully understood what the effects would be on your life?
Witness C: I did not think it would be like this, and I am not blaming [Witness D] or anybody like that. I did not think it would end up that I could not say to people, “This happened and then that happened.” I think I was quite fortunate in some of the press reporting, because some of the broadsheets were really kind and fair, but you are courted by the press afterwards, you know. Somebody said, “We would like you to be on [programme details],” and I said, “Let me think about that. No.”
Jess Phillips: That is how we all feel.
Witness C: [Programme details] perhaps, but not that, no. You cannot say anything, you cannot do anything, and you are just trapped, almost in “Groundhog Day” really.
Q610 Sarah Champion: Can I pick up on some details? You went to [details of type of legal claim and outcome.]
Witness C: Yes.
Q611 Sarah Champion: In the [type of court and outcome].
Witness C: Yes. They did a judicial review after the employment tribunal. It was a [time period] hearing in the employment tribunal and [details of legal process]
Q612 Sarah Champion: But that would be in the public domain, [details of case] so could one in a similar situation to you say, “I took my employer to a tribunal over discrimination” or a grievance or whatever, “and [details of case]
Witness C: I am not allowed—
Q613 Sarah Champion: Could one’s NDA cover you for that?
Witness C: If I was being interviewed by you, Sarah, all I could say is that all these things are in the public domain and you can read about them. But then that means that they read about the things—
Q614 Jess Phillips: The Daily Mail and not the court proceedings.
Witness C: Yes, the Daily Mail, not The Times or the Financial Times. They read the Daily Mail. That is all I can say, and I cannot do anything else. Bearing in mind the vindictive—
Q615 Sarah Champion: I am sorry, I am going to keep pushing at this because you are tough enough to take it.
Witness C: I am.
Q616 Sarah Champion: It is a matter of fact and it is in the public domain, it is on public record and will be forever, so is it your assumption that the NDA stops you from giving that? You could give the court transcripts to people. Is it a reality that an NDA could gag you effectively from that, or is that your perception?
Witness C: No, it is not my perception, and you have made a very good point, Sarah. [Details of case]. They’re not going to read [time period] of paperwork. They’re not going to find the fine detail where you came across really well. They’re just going to go, well, it’s like that and that’s it.” That is all they do.
You are right. I could do that. I could not do anything other than that, because, as I say, I cannot even tell you whether I signed an NDA or not. It is that draconian. I offered it to her and she said, “Look—”
Q617 Sarah Champion: It is Google.
Witness C: Yes.
Q618 Tonia Antoniazzi: Do you have any concerns now about the repercussions from your former employer if they thought you had breached your NDA?
Witness C: They would come for me for the money. [Witness D] made that point to me. [They] said, “You’ve got to be very careful because [personal details] We have moved to a [personal details]. I am not moaning about it; we are not in Syria. [personal details]. I can still afford a bottle of wine from Aldi.
Q619 Tonia Antoniazzi: There’s nothing wrong with that. I’m there every weekend.
Witness C: Exactly. I know, I am on with it, Tonia. I love Aldi. You can—I’ve got lost.
Q620 Jess Phillips: They would come for you.
Witness C: They would. They would hunt me down.
Witness D: Would it help if I made a few observations in general?
Q621 Chair: Yes. We were not expecting you to speak, but if you like you can.
Witness D: First, I think [Witness C] is [description] for what [they] achieved and what [they] did. One has to bear in mind that, in many ways, [they are] the exception to the rule.
Jess Phillips: Of course.
Witness D: Most cases never see the light of day and they never get any publicity. People do not normally go to court, and I was not there—
Q622 Chair: I am sorry, but can I ask your name?
Witness D: [name]
Q623 Chair: Where are you from?
Witness D: [Organisation]
Chair: Thank you. I realised I had not asked you.
Witness D: First, [details of case] so I was not there at the beginning advising what to do. If you are someone who is mentioned in the press as claiming a large sum of money, you may as well put a big X on your back; you make yourself a very public target, especially when the press have been free to report sensationalised commentary on the evidence that is given. That is the first thing.
I always tell clients that, if they bring litigation, they have to bear in mind that it is often career limiting. I do not generally advise a client to bring litigation unless it is the endgame for them. They may feel that they do not have a future in their career because of what has happened to them, but they have to go into it with their eyes wide open. I do not think it is the NDAs, if you have a matter that goes to court, that cause the real mischief: it is the fact that you have brought a claim that may have been reported on and people can draw their own conclusions—that you are a troublemaker, or this or that. The litigation game is a dangerous one to engage in, but sometimes people feel they have no choice but to take a stand if they think their career has been ruined anyway, or they want some elements and some modicum of justice. I make those initial observations.
It is easy to sit in this Committee and ask questions about, “Why did you sign an NDA?”, but imagine you have been fighting a case hard for [time period] ”—
Q624 Jess Phillips: Yes. We do not make a judgment on that.
Witness D: I know that, but there is a pot of money there on that table, [£ amount or £ amount]—whatever it is. When one is dealing with a negotiation on an exit and a termination, they are multifaceted, and clearly not saying anything derogatory and dealing with confidentiality is an important aspect of that, but there are many other aspects to those negotiations, including how the tax structuring is done in terms of how the payment is made. They are but one element.
If you have someone who wants and needs a resolution, and if there are large sums being paid, one has to expect an element of confidentiality, because they do not want to find that that person then goes and gives a press comment or a scoop on the inside story and what really happened. In many ways, judged from the perspective of someone who is wishing to bring a claim, or is threatening it, having the currency of a sword of Damocles hanging over the employer’s head, “I can go to the press,” is often what makes people pay money to litigants or potential litigants.
I am not suggesting or thinking that this Committee is going to try to outlaw, even if it could, the use of NDAs. They have a place if they are dealt with proportionally and have certain safeguards in place, which is, I think, what can usefully come out of this Committee, and what may help legal professionals in helping people like [Witness C] say to the defence lawyer, “No, we cannot agree to that,” and, professionally, “I cannot advise my client to do it, otherwise I will be compromised from a professional perspective.”
It is worth the Committee having an understanding that in January this year, the Law Society, as you may have noticed, issued some sort of statement to the legal profession as to what they think the legal profession should do when they are conducting these negotiations, and what should be the red lines, reminding lawyers what their professional obligations are. As a law firm we found that quite useful in dealing with negotiations in recent times, where we have had a belligerent employer on the other side wanting to impose things that we felt were not acceptable, judged by today’s standards and how people look at things today, as opposed to 10 years ago. We have made good headway in negotiating settlements.
I brought with me, if it is of any interest, some email correspondence on a case of mine and a settlement agreement that was reached—we have anonymised it all—so that you can see how the terms were set out.
Chair: That will be helpful.
Witness D: I only have three copies, but I will hand them up. There is nothing in there that I think will identify the names of the parties. You can read it yourselves at your leisure, but, as you will see, it is interesting that it was a case where we had been acting for someone who was complaining of [type of] bullying in an investment bank setting, historical bullying that took place three or four years ago. He only now felt strong enough to bring a claim, and we threatened a High Court claim, on the basis of prevention from harassment and personal injury.
It is worth bearing in mind that often people who claim they have been subject to discrimination and harassment suffer some sort of injury—mental illness is an injury—and that has a particular course to follow. In that situation, we ended up arriving at a good settlement, but there was quite a lot of negotiation around how the settlement should be dealt with for confidentiality and non‑derogatory. We relied on the Law Society guidance and got them to move back quite a long way. For instance, in that case the client could speak about it with a prospective employer. The client could speak about it with a regulator, not because they may be compelled by law but because they may wish to. Certain safeguards were built in, which I think are quite useful staging posts for you to think about.
Q625 Chair: That is really helpful. Thank you very much. Thank you both for coming along today and sharing your experience.
Witness C: Thank you.
Jess Phillips: You are a legend.
Q626 Chair: It really helps us get a flavour of the sort of impact that these things are having on people’s lives.
Witness C: Thank you for listening to me. I really appreciate it.
Chair: Thank you very much for your time.