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A recent decision of the General Court of the European Union has highlighted the need to ensure that victims of harassment are not prevented by an employer from disclosing unlawful acts.
In SQ –v- European Investment Bank, on 1 April 2008 the Bank hired SQ as an employee in an administrative role.Following the arrival of a new director in October 2014 the department in which she worked was restructured.Two years later she complained that the behaviour of the new director towards her constituted psychological harassment.The allegations included claims that he had belittled her, spoken to her inappropriately and treated her unfavourably in relation to others.The Bank upheld her complaint in part and requested the new director to apologise, but also informed the employee that the procedure was to remain strictly confidential, including within the Bank.
The General Court considered a number of issues, but so far as the confidentiality requirement was concerned the Court found that the Bank was not entitled to impose a level of confidentiality on its decision and on the new director’s letter of apology that amounted to prohibiting the employee from disclosing to third parties the existence and content of those documents.The Court found that requiring the victim of psychological harassment to stay silent would result in the person concerned being unable to derive any benefit from the findings made by the institution, including in possible legal proceedings against the harasser.Adopting a policy-based approach, the Court also said that such an interpretation would run counter to the objective of preventing and penalising all occurrences of psychological harassment within the EU institutions.The Court awarded €10,000 damages to the employee.
It may be argued that this decision is limited on its facts to EU and public institutions but the decision upholds general principles of open justice and victims’ rights to disclose information should they wish to do so, which are expected to be applied to both public and private organisations.
Hilary Garnett, Partner, commented: "Whilst the decision does not directly affect non-disclosure and confidentiality clauses that are commonly used in Settlement Agreements, it does add to the debate about the validity of confidential or “gagging” clauses contained within such agreements. A clause in a Settlement Agreement is void in so far as it purports to prevent employees from making protected disclosures, or whistle-blowing but there is often debate as to what constitutes a protected disclosure. A worker cannot contract out of their entitlement to make a protected disclosure, but workers can agree to secrecy in relation to other issues. Employers should carefully consider what they can and cannot insist upon remaining confidential. It is arguable in a case of harassment that the disclosure would in fact be “protected” and as such an employer wishing to seek comfort that such allegations will remain secret may be misplaced."