Media features on controversial management behaviour and harassment in the workplace are more common than ever in the age of #metoo. Recent headlines include allegations of sexual harassment against Sir Philip Green by a former Topshop manager in the US; Mr Green denies the allegations.
Only a month ago, the Court of Appeal granted an injunction to a high profile senior executive which allowed him to stop the Daily Telegraph and other national news outlets from reporting his alleged misconduct towards staff. The injunction was granted on the basis that the individual had settled many of the claims of his former employees with huge pay-outs pursuant to non-disclosure agreements. However, the public learned the identity of the alleged disreputable senior executive when Lord Peter Hain identified the subject of the allegations in the House of Lords under Parliamentary privilege.
The legitimacy and fairness of non-disclosure agreements has been widely discussed since. The courts recognise that a balance between the right to privacy and freedom of information must be struck and applies a test of proportionality. In the recent Court of Appeal case, it was further concluded that the duty of confidentiality pursuant to an express written agreement carries more weight than a non-express duty of confidentiality. That means a written confidentiality clause which was voluntarily entered into is more likely to be enforced than confidentiality that is not supported by a written agreement. In respect of the chances of obtaining an injunction against the media, a non-disclosure agreement might tip the balance in favour of privacy to the detriment of public interest.
Does this mean money is able to buy the English legal system? Not necessarily.
Non-disclosure agreements might protect those who can afford them to a degree, but they do not offer 100% certainty. The extent to which such agreements are enforced depends on the facts of the individual cases, and the courts may well decide that the public interest outweighs the duty of confidentiality in future scenarios. Further, confidentiality clauses are very often qualified and include exceptions. For instance an order of a court or any other competent relevant authority does not prevent the disclosure of the confidential information.
If you have any questions in respect to confidentiality clauses, non-disclosure agreements or the right to privacy, please do get in touch with Robert Ganpatsingh on 01273 744213.
Article written by Beatrice Bass