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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

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    273 Reviews

    Mark M

    I found Redmans very easy to work with. Mel was very responsive, her advice led to an improved settlement. . Recommended.!

    Posted 2 days ago

    Anonymous

    Fantastic service. I would recommend Redmans to anyone who needed a Solicitor. The communication was second to none and consistent clear guidance was given.

    Posted 4 days ago

    Anonymous

    Everyone I dealt with at Redmans were professional, empathetic & always responded promptly and helped make the transition as smooth & efficient as possible for me. If you need legal advice, don’t hesitate & contact the team.

    Posted 6 days ago

    Anonymous

    Sacha was incredibly helpful and professional. Timely and accurate advice at a time I most needed it. I was extremely impressed and grateful.

    Posted 6 days ago

    Sue W

    The people at Redmans talk to you with respect and make you feel like they take your situation personal. They clearly care and are extremely professional. I have recommended Redmans to many people.

    Posted 3 weeks ago

    Anonymous

    Redmans Solicitors were consistently prompt, efficient and professional from the start of my reaching out to them for support in relation to contentious negotiations of an employment matter that continued for almost two months resulting in a positive settlement agreement. Chris Hadrill was diligent, thorough, empathetic and objective in his advice and guidance, showing deep and broad knowledge of the law and legal processes plus extensive practical experience in handling complex matters, resulting in clear and pragmatic advice in ambiguous circumstances that resulted in a very good outcome. I fully recommend Chris Hadrill and Redmans Solicitors! I have made this review anonymous purely because of the confidentiality obligations in the settlement agreement concluded.

    Posted 1 month ago

    Michelle W

    Redmans solicitors provided legal support and advice for a settlement agreement. Excellent customer service, very professional. The senior associate solicitor kept me updated throughout the process, showed empathy and the agreement was signed-off / completed within the agreed timeline.

    Posted 1 month ago

    Mark W

    Redmans Solicitors were extremely professional and helpful! Chris Hadrill handled my case and was an amazing help! His guidance, advice and understanding to my redundancy settlement were always clear, concise and very helpful and I am very grateful to him, and glad I found Redmans to help with my settlement. I highly recommend them!

    Posted 1 month ago

    Alison M

    Very happy with the advice I received

    Posted 2 months ago

    Margaret A

    I found everything about the company to be extremely professional and efficient. During my initial contact with Chris, he listened well and was reassuring, so I felt confident that my case would be well handled. Caroline was excellent at explaining all the legal points and answering my questions, as well as being very supportive and understanding throughout the process. I would definitely recommend this company.

    Posted 2 months ago

    Sanja K

    Very efficient and professional service.

    Posted 2 months ago

    Anonymous

    I found the advice I was given by Redmans Solicitors to be clear and useful and found the solicitor on my case to be both knowledgeable and approachable.

    Posted 2 months ago

    Karen T

    Great service. Thank you.

    Posted 2 months ago

    Anonymous

    Excellent service from Chris & Mel Chin. The best outcome was achieved from the redundancy process. They were extremely thorough, listened carefully and acted swiftly on my behalf. I highly recommend Redmans Solicitors

    Posted 2 months ago

    Shanine M

    Excellent service, thank you so much!

    Posted 2 months ago

    Anonymous

    I found Caroline and Chris very Helpful and provided excellent service. Caroline especially provided great legal advice and made me feel at ease with the whole process. I would highly recommend them. Thank you!

    Posted 2 months ago

    Gayle B

    Excellent company very professional would definitely recommend

    Posted 2 months ago

    Alex K

    Redmans provided an excellent service, timely and effective. Will definitely recommend.

    Posted 2 months ago

    Anonymous

    Great job done on my employment law

    Posted 2 months ago

    Dominica S

    Caroline & Chris were very prompt and efficient.Very happy with the service and will definitely recommend Redmans Solicitor to everyone !

    Posted 2 months ago

    Sandra K

    If you are looking for a group of solicitors who are Professional, Caring and on point, then look no futher than Redmans. I was literally hand held through out my case. Can not find fault with this company, very happy with the result and the service i received. Would highly recommend Redmans.

    Posted 2 months ago