Justice Minister Vows To Tackle ‘Unenforceable’ Sex Harassment Gagging Clauses

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Justice minister Lucy Frazer has vowed to clamp down on gagging clauses that threaten to silence women who suffer potentially criminal sexual harassment. 

Appearing in front of the Commons’ Women and Equalities Committee, Frazer said she would “definitely” tackle lawyers who were helping employers write “unenforceable”′ clauses into non-disclosure agreements (NDAs). 

MPs are worried such agreements are increasingly being used to intimidate employees and cover up potentially criminal behaviour, after women hired to work as hostesses at the notorious Presidents Club dinner were subjected to sexual harassment.

Some were asked to sign NDAs on arrival at the dinner at the Dorchester Hotel in January and later alleged they had been groped and propositioned by attendees. 

Frazer, a qualified barrister, was also taken to task over Government slashing of legal aid for women fighting an employment tribunals over sex harassment or sex discrimination at work, with Labour MP Jess Phillips asking her if she would attend such a hearing without a lawyer.

Committee chair Maria Miller said legal professionals who attempted to write “unenforceable” clauses into NDAs should face consequences.  

She added: “Should it not be against professional conduct to put in a contract an unenforceable clause, because you are misleading people who are not as well-equipped as you are at assessing the fact that that is not enforceable – surely that is professional misconduct?”

Frazer told MPs signatories already had some protections and that the Government was exploring NDAs as a whole. 

“It is absolutely wrong and there are measures in place and laws in place to protect people from wrongdoing,” she said.

“There are protections in place but it is right that government looks at whether there are gaps that can be filled if people aren’t being protect.” 

Miller, a former women and equalities minister, pressed the issue.

“When it comes to covering up wrongdoing, not just in sexual harassment but in maternity discrimination as well, to say you aren’t allowed to talk about something which is potentially a breach of the law – should we not be sending a really clear message to the legal profession that that’s got to stop?,” she asked.

Frazer replied: “I think it is definitely something we should look at, yes.” 

As part of the committee’s inquiry into sex harassment at work, Phillips asked whether the government thought it fair that legal aid cuts could see those on low incomes forced to represent themselves at tribunal hearings.

The minister admitted there “is an issue with inequality of alms”, but said that just 24% cases went to a final tribunal, with most settled out of court. 

She added that “hopefully it is not a scary procedure” for those that do have to make their case at tribunal. 

Phillips, a former women’s aid worker, said: “Would you go without a lawyer? You’re a barrister, so maybe you have a member of staff, maybe you have a cleaner, would you advise that she go without a lawyer?” 

Frazer refused to answer yes or no, but said: “Obviously as a barrister, I see the value in legal services.” 

She went on to suggest that women who could not afford a lawyer themselves may be able to rely on student barrister volunteers. 

“There is great work being done by pro bono lawyers to support people who don’t have paid-for legal advice,” she added.

Frazer said court services were being reformed, including individuals who had to represent themselves getting “text messages to know when their evidence has been received”. 

She concluded: “Legal representation is important, but it is one part of making the process easier and simpler to manage.”