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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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173 Reviews

Anonymous

Excellent service, compassionate and a good outcome

Posted 19 hours ago

Anonymous

I had an employment issue which required legal advice. Chris was very supportive and knowledgeable, resulting in an optimum resolution in my favour. Would definitely recommend.

Posted 1 week ago

David M

Very professional and first-rate advice. I would use again. With thanks,

Posted 1 week ago

Anonymous

Got the job done swiftly without going too much in to detail.

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Derek W

Redmans dealt with my case very efficiently and I was happy with the outcome.

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Anonymous

Timely professional advice!

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Anonymous

Very good service

Posted 2 weeks ago

Anonymous

I was in contact with Chris and then worked with Caroline on an employment matter. I was very pleased with the service and professionalism throughout, and came away with satisfied with the outcome. Would happily recommend.

Posted 2 weeks ago

Nikki

Received advice re employment law. Chris was very helpful and advised accordingly. Would happily recommend them and if ever I need help again, will not think twice before using them.

Posted 3 weeks ago

Samantha K

Absolutely brilliant thank you. Caroline Lewis is a legend

Posted 2 months ago

Anonymous

The legal advice was clear and helpful.

Posted 2 months ago

Davinder P

Good Service

Posted 2 months ago

Adrian V

I was using Redmans services for a Settlement Agreement. Very quick and professional service. The outcome was favourable and I was very pleased with the amendments and results. Pretty glad to recommend them for any type of legal advice.

Posted 2 months ago

Anonymous

Very responsive, efficient, clear and supportive. Thank you! Highly recommend.

Posted 2 months ago

Tiago S

Chris was always prompt to help me with legal matters that are beyond my comprehension and very helpful leasing with my former employer. I would recommend Redmans Solicitors to everyone who needs help.

Posted 2 months ago

Anonymous

Fast and professional advice tailored to what was needed. Thanks for your help Chris Hadrill and team.

Posted 2 months ago

Peter S

Really pleased with the outcome and the advice I had from Chris and Sacha.

Posted 2 months ago

Harika A

Redmans solicitor's helped me with my settlement agreement, Chris has been very helpful throughout the process.He was very prompt in his responses and made my settlement look simple.Special thanks to Caroline for her efficient communication, thorough explaination of contract terminology and negotiations.I highly reccommend Redmans solicitors for anyone seeking employment related legal help.

Posted 2 months ago

Anonymous

Good and quick service

Posted 2 months ago

Ricky D

Very satisfying to be assured of such attention and professionalism.

Posted 2 months ago

Anonymous

Excellent service - thankyou

Posted 2 months ago