CHAPTER 12

• Jurisdiction: United States

CHAPTER 12

Silent Women? Non-Disclosure Agreements and the #MeToo Movement in the United Kingdom

Aileen McColgan¹

In October 2017, the Harvey Weinstein scandal generated domestic #MeToo headlines when Weinstein's former UK assistant, Zelda Perkins, first revealed harassment she suffered by Weinstein in 1998, as well as Weinstein's sexual assault of a fellow Miramax worker. Perkins detailed how the two women had been subjected to extraordinary pressure by Miramax's UK law firm to sign a non-disclosure agreement (NDA) in 1998 when they resigned from their jobs, silencing their exposure of Weinstein's conduct for decades.² Perkins later told Parliament's Women and Equality Committee that Weinstein had been physically present at the 1998 post-employment discussions between the two women and Miramax. Negotiations had taken place over several occasions, including a twelve-hour session that ended at 5:00 a.m., and neither woman was permitted to retain a copy of the NDA, whose terms included a requirement that the women use their best efforts not to disclose anything in any criminal proceedings that might be taken against Weinstein.³

The Perkins case has not been the only example of #MeToo outrage focused on the operation of NDAs. In January 2018, the Financial Times sent several female journalists to work as undercover waitresses at a men-only fundraising "President's Club" dinner, held annually in London. Dinner organizers instructed the all-female waiting staff to dress in skimpy black outfits with matching underwear and high heels and required the women to sign NDAs in advance of the evening. The Financial Times reported that guests sexually harassed and assaulted many of the staff members. Attendees included leading names in the UK's business, media, legal, and political spheres.⁴

Parliament's Women and Equalities Committee concluded in July 2018 that NDAs had been used unethically by some employers and lawyers to silence victims of sexual harassment, and that there was insufficient oversight and regulation of their use.⁵ The Committee accepted that NDAs could be appropriate in settlements of sexual harassment claims if a "victim makes the judgment that signing an NDA is genuinely in their own best interests, perhaps because it provides a route to resolution that they feel would entail less trauma than going to court, or because they value the guarantee of privacy." But, the Committee expressed grave concerns about the widespread and unethical use of NDAs "to silence victims of sexual harassment in the workplace" from reporting serious wrongdoing to the police, assisting with criminal investigations or prosecutions, and discussing matters of public interest. The Committee referenced fears of criminal prosecution expressed by women who had signed NDAs and demanded that the legal professions' regulators "demonstrate that [lawyers] will face serious sanctions if they sexually harass clients or colleagues or if they misuse NDAs to silence victims of sexual harassment." The Committee recommended a variety of legal changes to require that NDAs be clear, that they set out the disclosures that signatories are legally entitled to make, that the scope of permissible disclosures be extended, and to make it an offense for employers and their professional advisers "to propose a confidentiality clause designed or intended to prevent or limit the making of a protected disclosure or disclosure of a criminal offence."

In October 2018, the Women and Equalities Committee published a report on the sexual harassment of women and girls in public places.⁶ It found that sexual harassment "affects the lives of nearly every woman in the UK," with many experiencing it routinely, serving to "affect[] women's behaviour and choices and restrict[] their freedom to be in public spaces." The Committee called for the introduction of a "comprehensive plan or programme of work" to achieve the commitment made by the government to eliminate sexual harassment of women and girls by 2030, stating that the governmental "foot appears to be almost entirely off the pedal" and that the government "has not caught up with the huge social changes reflected in the #MeToo movement. Instead it risks giving the impression that it thinks sexual harassment is either too trivial to address, or that the problem is immune to policy intervention."

Among the recommendations made by the Committee were: the collection of data by the government on sexual harassment in public places; the development of educational strategies based on "a robust understanding of why [sexual harassment] happens, who perpetrates it, and how men and women differ in their understandings and experiences of the problem [which] must understand the cultural attitudes and social norms that lead to or enable sexual harassment, and how to go about challenging and changing them"; consideration of whether sexual harassment should be categorized as a hate crime; and the regulation of sexual harassment in online spaces and on public transport.

Also, in October 2018, the British media reported that billionaire retail businessman Sir Philip Green had entered into non-disclosure agreements with five former employees who accused him of sexual harassment. The NDAs were upheld by the Court of Appeal, but Lord Peter Hain used Parliamentary Privilege to name Green in the House of Lords, as a result of which the businessman's identity was widely published. In January 2019 Green abandoned legal action against the Telegraph newspaper in connection with the disclosures, and in February 2019 the media reported that Green had paid several former employees at least £1 million not to disclose allegations of sexual assault or racial denigration. Green denied that his conduct amounted "to any type of crime, or anything that would amount to gross misconduct, or a serious risk to health and safety."⁷

The #MeToo movement in the United Kingdom has generated increased awareness of the extent and nature of sexual assault. It has spurred action by (largely) female journalists⁸ and barristers.⁹ The Royal Court theater issued a behavior code for the theater industry in November 2017 and the following month scrapped plans for the production of a play whose co-director was accused of sexual harassment.¹⁰ The doctors' union has called for a #MeToo movement to stamp out sexual harassment of female doctors, many of whom experience bullying and harassment.¹¹ The Law Society and Bar Standards Board, which regulate solicitors and barristers respectively, have warned lawyers that they may be subject to disciplinary action if they are involved in the misuse of NDAs, and the Law Society has initiated such proceedings against the solicitor who acted for Weinstein in relation to the NDA imposed on Zelda Perkins.¹²

Evidence of a backlash against #MeToo is emerging in the form of defamation claims designed to silence allegations of harassment. One recent example concerns a number of women sued for defamation by an (unnamed) prominent musician after accusing him of unacceptable behavior toward women.¹³ Another was the decision in Stocker v. Stocker in which an award of £5,000, with £200,000 costs, was made against a woman who accused her ex-husband in a Facebook post of having tried to "strangle" her after an incident in which he left handprints on her neck that were visible to the police two hours later.¹⁴ The judge who ruled against Ms. Stocker is quoted as having accepted that her husband had been guilty at least of assaulting her, that there were "gun issues," and that he had made threats "though not of immediate violence against her," but ruled that she had defamed him by suggesting that he was a dangerous man. It is worth noting that Mr. Stocker had been arrested on three occasions, one of which related to the breach of a non-molestation order, while another concerned a firearm.¹⁵ The judge further ruled that, although the definition of strangulation did not...