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Literature Review on Non-Disclosure Agreements and Sexual Harassment in the UK

Info: 2621 words (10 pages) Law Essay
Published: 4th Nov 2020

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Introduction

In organisations, employers offer job opportunities based on contractual basis. However, in UK, one of the common contracts which most workers sign during employment is the Non-Disclosure Agreement. Portuese (2018.p.3) suggested that Non-Disclosure Agreement abbreviated, NDA this is a legal contract which blocks any employee simply from revealing to a third party, although any method of information that is considered private or confidential by the owner of the organisation. Moreover, the mishandling of NDA and misrepresentation of the terms and conditions of the contract created an opening way for employers in order to exploit and not respect the rights of the employees. However, many cases of sexual harassment this has not been spoken about or even reported by the victims due to the fact of fear such as extinction work contract, fines or even lawsuits. Although sexual harassment this is defined by Jin and Bak (2018, p.1398) any form of undesirable behaviour of sexual nature in which the person is made to feel intimidated, offended, uncomfortable, humiliated and degraded. Legal provisions against sexual harassment in UK are found in the Equality Act of 2010 and sexual discrimination Act of 1975 (Colebrook, 2018, p.331).

Furthermore, sexual harassment in any businesses or organisations they have clear consequences. Whereas for the victim it majorly impacts on the individuals mental and physical health, this then creates an issue where they are compelled to change their occupation or even unemployment which can be based on personal decision to quit work, this can then decrease the individuals approach to on-the job learning and development opportunities, and delays  career progression (Quick and McFadyen, 2017,p.267). in Addition, for the employer this produces a decreased efficiency in the business, increased instances of absence employee turnover, and high-priced legal costs. This essay pursues to establish that there are no contractual clauses in the NDAs that blocks or rather stop victims of sexual harassment from revealing information to the third parties and this consists of reporting the issue to the police, human right agencies or even their own work colleagues. In order to achieve the aim of this study, particular attention would be on the relevant cases, a review of the past literature on the topic, statistics on sexual harassment in the UK.

Enforceability of NDAs

Non-Disclosure Agreements according to Kathuria and Lai (2017, p.2) discourages the employees of businesses from sharing information which the employer regard to be private or confidential. The employers are mainly based on the contractual clauses in order to retain the information they obtain from the work environment to themselves. In vast majority of cases it is important to keep the information gathered private is in situations where the employee has continuous access to the private operational strategies employed by the CEOs to maintain competitive advantage in the market. Whereas the law in UK have provisions to protect private data of their citizens as outlined under human rights, the NDA this is imperative to businesses as it has provisions which are personalised to support the work environment, various working techniques and it is separated with a focus on the goals and objectives of the business. This works in favour and becomes an advantage of the business or even the employer since its more of an oath.

Likewise, the NDAs is same as other binding agreement signed between two or more parties which are legally enforceable. Although, the breach of the contract this could be either the current involved parties who can attract lawsuits or even penalties to the liable party. According to Portuese (2018, p.5) the employer can keep an injunctive relief if the intent is to stop reputed breach of the contract. Encounters can develop when it is not the employer under the contract releasing the information, instead it is now disseminated in the public domain. Thus, enacting the provisions of a certain NDA this can be challenged on the grounds which the party might be liable which had access to the information beforehand joining the company or the information which the company believes to be private was gained outside the operations of the business.

An estimation of numerous ways, which NDA can be enforced does not exhibit any aspect of restriction from talking about personal concerns. Sexual harassment this is not a procedure of strategic operational methods for attaining competitive advantage in the business sector which an employer would view as confidential or private. This is a well-defined violation of an individual’s rights, it is considered dishonest to gain benefit of uninformed workers and expose them to psychological distress, physical harm and trauma for the price of satisfying personal requirements. The government agencies, company lawyers and employers due to the emerging contentious discussions on misinterpretation of the NDAs clauses to endorse sexual harassment should make sure that NDAs are used mainly for protecting the private or confidential information and not suppressing the victims of sexual harassment and concealing misconducts.

Typical Case

A sexual harassment scandal which involves Harvey Weinstein made individuals to be able to recognise that sexual harassment is real, and the employees are suffering in silence. The allegations which is noted by Godier and Fossey (2018, p.n.d) was that NDAs for an extended  period have been successful in barring  the victims of sexual harassment from growing rightful complaints about their experiences of sexual misconducts to their respective authorities. Moreover, it is shown from Pasternak (1994, p.651) Zelda Perkins who is a former executive assistance of Mr. Weinstein’s left her job in 1998 as she witnessed her superior sexually assaulting and attempting to rape her colleague. During her statement to the WEC, it showed she wanted to file a lawsuit against Mr. Weinstein. It was shocking for her as she did not imagine for her to be informed that she has no option but to sign an agreement with Mr. Weinstein and The Miramax Corp. The agreement compelled her to accept financial settlement for the damage while knowing that the clauses in the NDA was not only harsh but also egregious.

Thus, it is obvious that the intent of signing the NDA was to confirm that Mrs. Perkins cannot share her experiences with no other third party. Unfortunately, whereas for her she was scared because every time she had a feeling of telling someone she thought she would face a lawsuit and her ending up in jail. For instance, the report explains that she lost faith in the justice system, which resulted her being emotionally and psychologically weakened and exhausted. Due to this she lost her job, was unemployed and decided to move to UK and started looking for new job opportunities.

Analysis

An evaluation of the above case example and the enforceability aspects of the NDA this led to a remarkable revelation. However, according to Bernstein (2018, p.444) NDA this can be unenforceable when it is prepared to evade disclosure of certain aspect of information that any way does not qualify as private or confidential to the business. Going back to Mrs Perkins case the privacy of the company was not at stake. Whereas, for Mr. Weinstein’s case the business lawyers they prepared a non-disclosure agreement which stopped the legitimate disclosure of professional misbehaviour and the discrimination of an employee who was exposed to sexual harassment. Secondly, employers can exploit their employees through lawyers by manipulating the terms of NDAs. However, the manipulated terms of contract this function more of a threat to the employees as opposed to a binding agreement meaning only one party is expected to honour the terms as outlined. According to the author, WEC report showed that other alleged individual victims were threatened with the possibility of facing hundreds of thousands of dollars lawsuit if they did not accept the demands of the contract.

Furthermore, the case presents an enhanced understanding of the consequences of sexual harassment to the victim. As mentioned from the previous case, the victims of sexual harassment they tend to undergo from emotional and psychological problems, these experiences can then cause trauma so for females there will always be that fear and negative perceptions about males. According to Davidson and Earnshaw (1990, p.25) it is suggested that people who suffer from emotional and psychological problems they are diagnosed with high blood pressure, depression and anxiety.

Moreover, unemployment or even job loss is a huge concern for individuals who have been exposed to acts of sexual harassments. Although, unemployment this originates from the opinion and the feeling that the place Is no longer safe. Thus, an individual willingly who decides to quit his or her position in the business to only then look for job in different places. Employers they can decide to be harsh such as when it comes to treating and assignment of responsibilities, the employee has no option but to resign due to the responsibilities and mistreatment. There is a low access to career growth opportunities for example the authorities who are in charge of selecting a certain group of individuals, in the case of a team leader or a company’s director they will not select a person who has had issues of discrimination to attend further studies or trainings required opportunities. Trainings often offer a career growth opportunity however the individual who is under such circumstance they will not be able to have the chance to grow and will be stuck in the same position while working for the same employer.

The employers of the business directors who are involved in sexual harassment, there will be a reduce in productivity and the loss of reputation. When employees who are working in such environment where they believe is not safe or witness their colleague workers being sexually harassed, there will be constantly loss of morale of work. For the reputation the business will conclude to have a good image while the potential customers and investors they will simply keep their distance or even invest in the rival companies or businesses. Furthermore, there might be an issue where the company will have to deal with lawsuits which can be really expensive.

Sexual Harassment Statistics

A survey by ComRes in 2017 working with 206 participants showed that 40% women and 18% had been exposed to sexual harassment in their workplace. (Lewis and Campbell, 2007, p.12). as stated by the participants they were at risk of pornographic pictures and videos, uncomfortable sexual comments and sexual assaults. Another identical case which was studied by ComRes this time working with 2031 participants established that 50% of women and 20% of men were exposed to many different sexual harassments in the workplace (Fielden, Davidson, Woolnough and Hunt, 2010, p.26). the data discovered showed that women are more exposed to sexual harassment than men. According to McDonald and Charlesworth (2016, p.124) the reason behind this is because the variation is based on sex and gender perceptions in the workplace. Such as the stereotypical ideas which enables men to look at women as the weak being, therefore they make uncomfortable comments which makes women feel uncomfortable or engage female gender in physical assault being aware that they will overpower them (Lee, 2000, p. 598). On the other hand, men are also faced with sexual harassment, but their experiences are unreported. Although men can also get raped but however most of the cases go unreported reason being for this is that they are embarrassed to tell or even speak about it, also they fear because they think they would be perceived as weaker beings (Annesley, Gains, and Rummery, 2010, p.402). Furthermore, a vast majority of men find it hard to believe that a woman or that a woman can rape a man. These types of stereotypes need to be eliminated by civil education to be able to obtain the desired data.

Conclusion

Sexual harassment in the employment sector is a challenging factor in various businesses and firms. As this negatively affects the employer or the business itself and the employee. For an extended period of time, many victims of sexual harassment they have been silenced by the non-disclosure agreements as well as concealing up for the misconducts. Moreover, it is vital for public to know that NDA are only expected to govern the privacy and confidentially matters of businesses and employers. There are no contractual clauses which stops an individual from sharing information related to sexual harassment in the workplace. This does not allow or even make the employer immune to being accountable to misconducts. Finally, employees they should rise up to the occasions and speak out for themselves and others to eliminate sexual harassment.

List of References

  • Annesley, C., Gains, F. and Rummery, K., 2010. Engendering politics and policy: the legacy of New Labour. Policy & Politics38(3), pp.389-406.
  • Bernstein, A., 2018. Preventing sexual harassment in the workplace. Nursing And Residential Care20(7), pp.344-346.
  • Colebrook, C., 2018. Is UK economic policy sexist?. IPPR Progressive Review24(4), pp.329-334.
  • Davidson, M.J. and Earnshaw, J., 1990. Policies, practices and attitudes towards sexual harassment in UK organisations. Personnel Review19(3), pp.23-27.
  • Fielden, S.L., Davidson, M.J., Woolnough, H. and Hunt, C., 2010. A model of racialized sexual harassment of women in the UK workplace. Sex roles62(1-2), pp.20-34.
  • Godier, L.R. and Fossey, M., 2018. Addressing the knowledge gap: sexual violence and harassment in the UK Armed Forces.
  • Jin, M.H. and Bak, H.U., 2018. Too Hard to Say# MeToo? Understanding the Role of Context on the Relationship between Workplace Sexual Harassment and the Choice of Response Strategies.  pp.1391-1408.
  • Kathuria, V. and Lai, J.C., 2017. Validity of Non-Disclosure Agreements in SEP Licensing. Forthcoming as' Royalty Rates and Non-Disclosure Agreements in SEP Licensing: Implications for Competition Law’in (2018)40(6), pp.2018-004.
  • Lee, D., 2000. An analysis of workplace bullying in the UK. Personnel review29(5), pp.593-610.
  • Lewis, J. and Campbell, M., 2007. UK work/family balance policies and gender equality, 1997–2005. Social Politics14(1), pp.4-30.
  • McDonald, P. and Charlesworth, S., 2016. Workplace sexual harassment at the margins. Work, employment and society30(1), pp.118-134.
  • Pasternak, J.D., 1994. Sexual harassment and expertise: the admissibility of expert witness testimony in cases utilizing the reasonable woman standard. Santa Clara L. Rev.35, p.651.
  • Portuese, A., 2018. From Non-Disclosure Agreements to Trade Secrets: Antitrust Implications.
  • Quick, J.C. and McFadyen, M., 2017. Sexual harassment: Have we made any progress?. Journal of occupational health psychology22(3), p.286.

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