MPs Renew Call for Review of Tribunal Damages System
The Women and Equalities Committee has released its second report into the use of NDAs in discrimination cases.
June 11, 2019 at 04:45 AM
4 minute read
A Parliamentary committee reviewing the use of non-disclosure agreements (NDAs) has renewed its calls to the government to better regulate how they are used, in a detailed report published today (June 11).
The Women and Equalities Committee called for clearer language and a review of the damages system within tribunals, in its report about the use of NDAs in discrimination cases.
Members of the committee said the government needs to "urgently improve the remedies that can be awarded by employment tribunals as well as the costs regime, to reduce disincentives to taking a case forward", adding: "Tribunals should be able to award punitive damages, and awards for the non-financial impact of discrimination should be increased significantly."
Testimonies from Clifford Chance and Gowling WLG were used to inform the report, which comes as the City continues to wrangle with claims of sexual harassment and bullying.
The subject of NDAs came to the fore following allegations of sexual harassment by disgraced movie producer Harvey Weinstein.
Allen & Overy partner Mark Mansell, who was involved in drafting the NDA between disgraced movie producer Harvey Weinstein and his former assistant Zelda Perkins in 1998, is set to face a Solicitors Disciplinary Tribunal (SDT) hearing over his role.
Mansell faced the Women and Equalities Committee during its inquiry into the use of NDAs relating to allegations of sexual harassment in the workplace last year.
The committee added in its report that it was concerned by evidence put forward by lawyers and other experts about the online publication of tribunal judgments, which the committee said has increased the risk for claimants of being blacklisted by future employers, and that "this is a significant barrier to potential claimants bringing discrimination claims".
The committee, which was chaired by Conservative MP Maria Miller, also said that a "rebalancing was required" when it came to employment lawyers routinely advising potential claimants with strong cases against using the tribunal system, because the risks outweigh the potential benefits.
Last week, a woman who successfully brought a sexual harassment case against her former employer, fund manager IFM Investors, claimed that a Herbert Smith Freehills partner acting for the fund said she would be "toast" if she pursued the claim in the Employment Tribunal.
Nathalie Abildgaard received a £270,000 settlement from the London Employment Tribunal in April.
In a letter to the government, in which Abildgaard gave evidence about the Enforcing the Equality Act to the committee, she claimed that Andrew Taggart, head of the firm's Europe, Middle East and Africa employment group, said: "If Nathalie goes on the witness stand tomorrow, her and [an other's] credibility will be so shuddered they will never be able to work in the financial industry in London again."
Abildgaard said she had reported the misconduct of IFM Investors, HSF and Taggart to the Financial Conduct Authority and the Solicitors Regulation Authority (SRA) and hoped that they "will take appropriate action".
According to a person with knowledge of the situation, the SRA has not progressed with the claim and it has not yet written to Taggart formally in relation to the allegations.
A spokesperson for HSF said in a statement: "We are aware that Ms Abildgaard has made a complaint to the SRA. This process is at its early stages and we will be fully cooperating with the SRA."
A spokesperson for the SRA said: "We are looking into the information we have before deciding on next steps."
In her letter, Abildgaard added that the tribunal system is "often unfavourable" to the claimant in that "tribunal awards often are low compared to the cost of litigation, tribunal outcomes are unpredictable and it takes a long time for the individual to potentially see any cash inflow from awards and cost reimbursements, leaving them in financial hardship in the interim period".
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