Non-disclosure agreements (NDA) must strike a balance between the rights of the client and the wider public interest, the chair of the Law Society of England and Wales employment law committee warned.
Max Winthrop was debating the subject with Zelda Perkins, a whistleblower involved in the Harvey Weinstein case.
The event was organised by the Law Society as a contribution to the recent debate on the role of solicitors in the use NDAs and confidentiality clauses – and what role ethical considerations should have.
“Solicitors have a responsibility to stay on the right side of ethics when drafting confidentiality clauses,”said Zelda Perkins.
“We must remember that there is disparity of power between a claimant and their employer. Even if well-advised, claimants are automatically in a position of weakness.
“There can be enormous pressure upon claimants to sign non-disclosure agreements without fully understanding the long-term implications.”
Recent high-profile cases have proven a cause for concern, and the Law Society has been working with government to protect those who may be vulnerable. We have submitted written evidence on the law relating to the use of confidentiality clauses where harassment is alleged and made suggestions for possible improvements.
“There will be situations in which confidentiality clauses are entirely appropriate – and in some instances, in the interests of the claimant and employer,” said Max Winthrop, chair of the Law Society employment law committee.
“However, the boundaries of these agreements must be made clear to clients and to claimants – in particular, they cannot prevent the reporting of criminal behaviour.
“With the enormous public scrutiny on this issue, it’s right that solicitors consider where responsibilities lie – to their client, but also to the public interest.”