A ban on victims selling their silence will have unintended consequences

Opinion: A ban on victims selling their silence will have unintended consequences.

In most disputes about bullying or sexual harassment there is a common desire to seek resolution with minimal disruption to the careers and damage to the reputation of all stakeholders – employers and employees included. Most do not want media scrutiny. Most want confidentiality and privacy, which can be achieved with an NDA, which is often a two-way agreement.

Banning silence will not achieve these ends and would, in fact, stifle prompt and (comparatively) painless resolution of complaints and, importantly, fast access to compensation.Sexual harassment and bullying cases are not big dollar value claims, but employers are frequently prepared to be generous early for an economically efficient outcome. This is understandable given the cost to an employer for an investigation can be between $20,000 to $50,000, and defending formal proceedings much higher.

If respondents to claims are unable to buy silence from complainants, then there is more of an incentive to try to defend the matter and their reputation during formal litigation, involving vigorous attempts to discredit the complainant.Further, respondents are going to fear the implication that a settlement is an admission of wrongdoing. Given that there would be no chance of using an NDA to avoid adverse messaging, and paying a settlement early in the process may be seen as indicative of guilt, why would an employer strike any early bargain?

The expense in funding sexual harassment matters to the point of judgment is considerable. If the complainant fails to make out their case, then they are exposed to a costs order, which often leads to debts in excess of a $100,000.If there is no prospect of a substantial negotiated settlement, many complainants will not have the necessary appetite for risk or the resources to fund themselves while waiting for court-ordered compensation.

This will have the unintended result of fewer people complaining about misconduct in the workplace.And while there is merit to the contention that NDAs can hide habitual misconduct, our view is that this is a responsibility that sits squarely on the shoulders of boards and management who – in these times – would be foolish to protect employees who are repeatedly the subject of complaint.

Source: A ban on victims selling their silence will have unintended consequences

One thought on “A ban on victims selling their silence will have unintended consequences”

  1. Sorry but, IMHO, this is bollocks. The system is broken and needs a complete overhaul. Many sexual predators start at home – with incest. Silence is ‘bought’ in the home without the exchange of money, but with emotional blackmail in the form of a threat that the shame will destroy everybody in the family – not just punish the perpetrator. And here we have it again, but with claims that, in the workplace, ‘stopping people from buying silence will have unintended consequences’. We need a system that will stop the temptation, not stop the humiliation. Hiding dirty secrets (no transparency) means no disincentive i.e., a continuation of the habit and a continuation of no justice – end of.

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