Philip Green & Should Gagging Orders Be Banned?

When you hear about gagging orders it’ll usually be a reference to a confidentiality clause in a settlement agreement document. For example, if you were harassed by your boss, or, more commonly, if you are being unfairly dismissed, in exchange for money, you leave quietly and agree to not go to court or bring allegations to the public arena.

It’s really great that campaigns like #metoo have gone global, and it’s great that unscrupulous employers like Philip Green are getting called out for sexual harassment and racism. But let’s not throw the baby out with the bath water here and go the extra step of banning gagging orders without a properly thought out alternative.

If an employee is a victim of harassment, but they don’t want to fight a long expensive court battle and get a load of media attention, how would they be able to accept a pay off in return for their silence? Remember, no one HAS TO sign a gagging order, but a lot of people want to be able to and just move on with their lives.

Full transcript:

So... gagging orders should they be banned
or are they actually really good and how
did you go about getting one well
recently in the news we've seen a
scandal involving Sir Philip Green
whereby a number of his ex employees
have come forward and said that he's
either sexually harassed them
specifically groping women in his employ
or for example racially abusing them an
instance where he's alleged to have told
her a black man to have go throw Spears
in the jungle now he's gone ahead and
got them to sign these kind of gagging
orders at the time now this story is
breaking the question is have we seen
too many gagging orders in public life
and are they actually stifled in the
truth and what should we do about
gagging orders so what exactly is a
gagging order and why would you want one
so when people talk about gagging orders
what they're usually referring to at the
moment in the media is something which
is a confidentiality clause
within a settlement agreement document
that document is something that you
would sign as an employee if you're
leaving your job after you've been
treated badly and you want to accept a
sum of money to kind of leave quietly
and not go to court or not make the
allegations public now these allegations
that settlement agreements could cover
you know do include things like sexual
harassment or racism and more commonly
things like unfair dismissal or
constructive dismissal or breach of
contract which are the kind of the more
run-of-the-mill cases that you more
likely to see and more often why would
you want one well actually for an
employee to go to court to resolve their
dispute with the employer is often a
very long and expensive and frankly
stressful process there's plenty of risk
involved of losing the case a lot of
these types of allegations are very
difficult to prove so if things like
sexual harassment and racism often there
be done when there are no witnesses and
and so you've got no one present to kind
of back you up in court and often it
won't be done in emails so it won't be
in writing so how are you going to prove
that
or you you know very likely to find that
you're gonna potentially lose that case
or in order to win you would need
expensive lawyers you know to represent
you from could be weeks or months or
years
before you even win a case so a lot of
people would actually prefer to receive
a lump sum payment and kind of move on
with their life then you've got the
money in the bank
you've got certainty about your future
you don't have to spend another year or
two of stress kind of reliving whatever
happened to you over and over again and
with the chance of walking away with
nothing so actually these
confidentiality clauses in settlement
agreements or gagging orders have as
they've been called are actually a kind
of a great thing
for a lot of people people who just want
to move on with their life they accept
that they can't change what happened in
the past yes they've been treated badly
and they wish that never happened but
you can't turn back the clock so what
you can do is you can get financial
compensation for that so in a way you
might think yourself lucky to receive a
decent sum of money and be able to move
on with your life and in in a kind of a
quiet way right if you like to change
your mind and you want to go public with
your allegations what can you do about
it if you've signed a gagging order
actually there's not a lot you can do
about it without the risk of being sued
by your ex employer or by the the old
boss or whoever it was that got the you
know the the settlement agreement signed
off with you and the reason for this is
that you've accepted a sum of money in
exchange for keeping quiet about what
happened so that was a kind of a
contract that you entered into freely
so yeah in court a judge would probably
say that you'd have to pay that money
back if you then went and changed your
mind in the future you went against what
your decision was and you decided to go
public you'd have to pay the money back
and if you were kind of being sued about
this whole thing you could end up paying
a lot of money in legal fees too now in
order to protect you as an employee one
protection in place is that in order to
be legally binding a settlement
agreement has to be countersigned by
your lawyer so you have to get an
independent lawyer such as us here and
one
Solicitors for example to put a third
signature on that document and we would
advise you about your rights you know
the financial compensation that you
might be able to get in a court case
whether this is a good deal financially
we understand you know as I said before
you can't turn back the clock but is
this money kind of enough to reflect
what happened to you and to kind of a
bit of a silver lining to this cloud and
once you're happy that you're you know
sure about your rights and you know what
you're doing you're sure you want to
accept the deal and take the money then
you would sign it off and we or your
lawyer would sign it off and it would
become legally binding so yeah it's
difficult to go back on that in the
future what these settlement agreements
don't do is they don't prevent you from
going to the police or to a regulator so
you can always do that after the event
so if the crimes been committed
you know gagging order can't actually
stop you from from getting justice but
what they do stop you from doing is
going to the press by and large or
talking about it to friends to
colleagues you know on social media
there's a big distinction there so what
effect has the recent media storm about
Phillip Green had on the future of
gagging odors well we've seen
politicians talking about banning them
as usual politicians are talking about
things in a way of a reacting to public
opinion here and they're not on they're
not on a very well-informed basis so yes
it's great that unscrupulous employers
are being exposed and it's great that
people like Sir Philip Green are being
called out for totally unacceptable
behavior that's brilliant
but let's not throw the baby out with
the bathwater here because actually
these confidentiality clauses these
gagging orders as I said are great for
employees who just want to move on with
their lives if you ban them what are you
going to do as an alternative you know
what is that employee what are their
options going to be will they have to
fight this thing in court and only about
to get conversation from a judge because
in my experience most employers just
wouldn't do that
you know they don't want to be this
public figure this martyr for the cause
to bring down the billionaire tycoon
they just want to move on with their
lives so if you take away their one
mechanism for a quick settlement where
they
can kind of move on what are you going
to replace it with they don't want the
stigma going to the next job they don't
want to be that person in the interview
you know who went public against their
old employer you know they just want to
accept some money and and agree not to
talk about it anymore now in fact in my
book the resignation revolution I'm
talking about how to get yourself a
settlement agreement and how to get paid
off when you've been badly treated at
work so rather than just resigning and
crying into your cornflakes and you know
having a bad time and being down on your
on your luck and the real confidence
blow get some money from your old
employer get a severance package get a
payout and then you can move on with
your head held high knowing that you
were in the right and you got fairly
compensated for it so how do you go
about getting yourself a settlement
agreement with the confidentiality
clause is something really unfortunate
happen to you at work well first of all
get yourself a good lawyer but if you
can't do that and you want to do it
yourself there's a couple of things we
would advise firstly try and keep it
verbal so try to keep it out of writing
rather than committing into writing your
complaint like for example in a
grievance you would want to maybe have a
phone call
without prejudice phone call which is an
off-the-record chat where you're telling
HR or telling your boss's boss or
someone high up in your employer what's
happened but as soon as you put it into
a formal written grievance then this
could trigger a whole investigation your
employer would have to finance that
they'll be trying to prove that person
innocent most of the time so they'll be
spending loads of money on this kind of
investigation when in fact they could be
paying you that money so try a verbal
approach first trying off the record
without prejudice phone call or even or
without prejudice letter if a phone call
doesn't work and only then really kind
of decide to commit it into writing an
open basis if you don't get anywhere and
Court is a last resort but a lot of
times you know companies don't want
these kinds of allegations coming out so
if there is a
evidence that you can bring into the
spotlight whether that's verbally for
example then you know you have got a
good chance at negotiating myself a deal
and just be able to move all of your
life thanks very much