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The Solicitors’ Regulation Authority (“SRA”) has recently released new guidance for law firms on how to (not) deal with confidentiality clauses (referred to in the media as “gagging clauses”) if allegations of discrimination, harassment or victimisation are made.

The guidance states that, if allegations of discrimination are made by a lawyer against her law firm and these allegations are upheld, with a settlement agreement (containing confidentiality clauses) agreed, the law firm concerned must, despite the confidentiality obligations, report the allegations of discrimination to the SRA (as the SRA views discrimination as a misconduct that “comprises a serious breach of [a solicitor’s] regulatory obligations”). A failure to report a breach is also likely to be treated a a serious breach of regulatory obligations.

The guidance also states that confidentiality obligations will be viewed as improper if they

  • seek to prevent a third party from: 1) reporting misconduct or a breach of the SRA regulations (or make an equivalent report to another regulatory body); or 2) making a protected disclosure under the Public Interest Disclosure Act 1998; or 3) reporting an offence to a law enforcement agency; or 4) cooperating with a criminal investigation or prosecution;
  • use confidentiality obligation to influence the substance of such a report, disclosure or cooperation; or
  • use existing confidentiality obligations as a means of improperly threatening litigation against, or otherwise improperly seeking to influence, an individual in order to prevent or deter or influence a proper disclosure

The guidance also states that law firms must be particularly careful to ensure that if the employee is not represented there is no abuse of position or unfair advantage taken, and if the agreement is a “settlement agreement” under the Employment Rights Act 1996 then the employee must receive independent legal advice (see here for our analysis of the statutory requirements of settlement agreements)

This new guidance from the SRA comes in the wake of media scrutiny of confidentiality clauses, which was itself prompted by (among other things) the revelations that Harvey Weinstein used confidentiality clauses in settlement agreements to prevent ex-employees of his production company disclosing misconduct on his part.

Chris Hadrill, partner in the employment team at Redmans, commented: “This guidance from the SRA simply reinforces the obligation for solicitors to report misconduct in the workplace and, further, that they not attempt or endeavour to assist an attempt to prevent a third party from reporting regulatory breaches or making protected disclosures.”

About

Redmans Employment Team deal with employment matters for both employers and employees, including drafting employment contracts and policies, advising employers and employees on compromise agreements, handling day-to-day HR issues, advising on restructures, and handling Employment Tribunal cases for both employers and employees Call 020 3397 3603 to speak to one of the members of our employment team or email us on enquiries@redmans.co.uk. Redmans have offices in Richmond, Chiswick, Hammersmith, Fulham, Kingston, Wimbledon, Ealing, Kings Cross and Marylebone (meetings strictly by appointment only).

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Testimonials

4.62 Average

53 Reviews

Anonymous

Both Rana and Chris were fantastic. From the first phone call I was confident my matter was in good hands. I was not disappointed. I would highly recommend Redmans. Thank you again for all of your support and advice.

Posted 3 days ago

Federico S

Great advices and communication. Through Redmana I obtained match more than what I thought. Highly recommended

Posted 5 days ago

Tom G

A good and efficient service with the required legal advice provided for a settlement agreement.

Posted 5 days ago

Francis T

The solicitor I used was Chris Hadrill, who I found extremely professional and I felt that he made me feel at ease, considering the subject matter he was assisting me with.

Posted 1 week ago

Anonymous

Chris provided excellent assistance with the negotiation of my settlement agreement. From start to finish, I was consitently updated and advised on the best course of action to take. I would highly recommend Chris and Redmans Solicitors.

Posted 1 week ago

Anonymous

They are busy people but manage well so generally I would recommend them.

Posted 1 week ago

Anonymous

Very efficient and professional service from my first phone call making an enquiry. Timescales of the matter in hand were met and within the agreed budget. Would highly recommend Redmans

Posted 3 weeks ago

Lisa B

Really very good service, always available to answer questions, provide my with any information I needed to make informed decisions.

Posted 3 weeks ago

Anonymous

Offered good support and advice

Posted 3 weeks ago

Anonymous

Chris reviewed and managed my compromise agreement swiftly, accurately, helpfully, and on budget. His input on key non-compete clauses was valuable, his communications were clear and concise, and he was always swift in responding. Highly recommended.

Posted 3 weeks ago

Gurbir C

Excellent legal advice service.

Posted 3 weeks ago

Tim

I found Redmans to be very helpful and efficient in conducting my case which was concluded in a timely and diligent manner

Posted 3 weeks ago

Anonymous

I found Redman Solicitors to be very good and worked very well to an extremely tight timescale. I would happily recommend them again especially Rana.

Posted 3 weeks ago

Anonymous

I received excellent, knowledgeable and critically timely support from Chris regarding my settlement agreement, and would wholeheartedly recommend Chris in these matters.

Posted 3 weeks ago

Katelyn

The solicitor communicated well with me and made sure I understood everything. He did everything needed for my settlement agreement and tried to get the wording changed in my favour too.

Posted 4 weeks ago

Anonymous

Redmans provided excellent services

Posted 4 weeks ago

Sibel U

Excellent service

Posted 4 weeks ago

Peter S

I was very happy with the level of advise I received from Caroline Lewis, and a very professional service fron Chris, The advice given really helped me and I was comfortable to sign the settlement agreement following my redundancy. I would be more than happy to recommend your services to others.

Posted 4 weeks ago

Derek S

I very much appreciated the help provided by Redmans in the settlement agreement agreed with my former employer.

Posted 1 month ago

Waseem M

It was the first ime I used Redmans Solicitors and to be honest, thety were amazing. Rana Tandon and Chris Hadrill were out of this world. They made the process as simply and smooth as can be. Thank you so much for all your support over the last week.

Posted 1 month ago

Anonymous

Worked very quickly considering right deadlines - and gave great advice

Posted 1 month ago