Over the last few days it has been difficult to escape the widespread coverage of the anonymised injunction obtained by Sir Philip Green preventing publication by The Telegraph newspaper of allegations against him by a number of former employees; and the subsequent decision by Lord Hain to use his Parliamentary privilege to identify Sir Philip as the business executive who had obtained the injunction.
Sir Philip obtained an injunction preventing the release of his name and other identifying details in the press in connection with allegations by former employees of Arcadia Group that he sexually harassed, racially abused and bullied members of staff. It is reported that 5 members of staff left Arcadia Group having made complaints of “discreditable conduct” by a senior executive and received financial settlements in return for entering into non-disclosure/confidentiality agreements (“NDA’s”) which prevented them from talking about these complaints and the circumstances surrounding them as well as the details of the financial settlements received.
The Telegraph, having gathered information on the story, was planning to publish details of the allegations and name Sir Phillip Green in its expose; however, Sir Phillip Green, learning of The Telegraph’s intentions, applied to the courts to prevent them from identifying him and publishing this information due to its confidential nature – being the subject of and protected by NDA’s. The High Court declined to grant an injunction preventing publication but this decision was overturned on appeal by the Court of Appeal; who granted an interim injunction preventing publication until a full hearing of the claim can take place.
However, this injunction has had limited effective as some two days later Lord Hain took the decision to use his Parliamentary privilege to name Sir Philip Green in the House of Lords as the businessman at the centre of what has been dubbed the UK #MeToo scandal.
The decision by Lord Hain has raised a number of issues:
1) Was Lord Hain right to use his parliamentary privilege to flout a judicial decision not to reveal Sir Philip Green’s identity before a trial of the issues could took place?
2) Should NDA’s be used to protect information including allegations of harassment?
3) Should Lord Hain be sanctioned for his failure to disclose his involvement with the legal firm acting for The Telegraph on the injunction application?
Theresa May during prime minister’s questions in the House of Commons confirmed that her government was still scrutinising the use of NDA’s and there is expected to be an imminent announcement on NDA reform to answer some of these questions on a higher level.
Briffa advises on all areas of intellectual property including the protection of confidential information and NDA’s.