Women protest sexual harassment at a #MeToo rally in New York (Photo: Stephanie Keith/Getty Images)

The campaign against sexual harassment appears to have been set back today.

The Appeal Court decision to impose an ‘injunction’ on the Daily Telegraph – preventing it from identifying a businessman (referred to by the initials ABC and now revealed to be Philip Green) accused of repeated incidents of sexual harassment and racial abuse.

This raises the question of how victims can seek justice, as well as what’s in the public interest versus the interests of the individuals involved.

The court agreed that ABC’s alleged conduct was ‘discreditable’ but the gagging orders, or Non-Disclosure Agreements (NDAs), took precedence over the public’s right to know.




So where does this leave us? Surely it must be in the public interest to find out about these cases if we have any hope at all of improving outcomes for victims?

Before we rush to remove NDAs, let’s stop and think about why they are there. Legally, injunctions offer protection for individuals or businesses that are at risk of having their legal rights breached by another party.

A business may even invoke an injunction before a legal dispute begins if the opposing side is likely to act in a way that damages the case.

It’s only more recently that we have seen super injunctions being manipulated to cover up misdemeanours. They not only ban reporting of the case in question, but any suggestion from the media that the super injunction itself exists.

For a woman experiencing sexual harassment, the only power she has is her threat to talk about it. Yet the fear of reputational damage then prompts the accused to offer a settlement, which buys her silence.

In this way, they help to cover up the scale of the problem, ensuring that the issue of sexual harassment doesn’t come to light, protecting perpetrators (even serial abusers) and enabling them to continue unchecked.

For a woman experiencing sexual harassment, the only power she has is her threat to talk about it. Yet the fear of reputational damage then prompts the accused to offer a settlement, which buys her silence.

Often she is forced out, or may go on long-term sick leave. If she didn’t have that power to talk, what other leverage would she have?

We live in a culture that too often rushes to cover up the problem rather than confronting it; in fact, what is needed is a proactive programme of culture change.

‘We have to create a culture which starts from a place where accusations of sexual assault are heard’ (Picture: Chris J Ratcliffe/Getty Images)

We know that the majority of sexual harassment cases are not reported and women are frequently vilified if they do. With no prospect of remedy for women who speak out, why would they come forward at all?

We agree with the Women and Equalities Select Committee (WESC) conclusion that NDAs are abused and their use should be curtailed, but we have to think about what we put in their place.

We have to create a culture which starts from a place where accusations of sexual assault are heard and respected, and which applies a suitable sanction for perpetrators. This includes being ready to push him, not her, out of the door if and when required.

This is why earlier this year Fawcett’s Sex Discrimination Law Review recommended that we bring back protections for women experiencing sexual harassment from customers, clients or contractors – the Presidents’ Club scenario.

We also recommended a new duty on employers to prevent harassment, backed by the Equality and Human Rights Commission and the WESC.



NDAs are being abused and that has to stop but we also have to think about how we hold employers to account for their own organisational culture.

Recent Fawcett polling found that the majority of people (including 56% of men aged over 55) say that since #MeToo what is or isn’t acceptable has changed and a majority of younger men say that #MeToo has prompted them to have a conversation with someone of the same sex about sexual harassment.

But the law and the behaviours of older men in particular are lagging behind.

It is a power game and unless we shift the balance of power, businessmen like ABC will still hold all the cards.

Sam Smethers is the Chief Executive of the Fawcett Society, the UK’s leading charity campaigning for gender equality and women’s rights.

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