NDAs: Al Fayed allegations highlight need for further action
Recent allegations that gagging clauses contributed to the cover-up of decades of sexual abuse by former Harrods owner Mohamed Al Fayed have once again led to calls to ban them in the UK.
In September, the BBC revealed that five women claimed the billionaire raped them while they were working at Harrods department store. One victim said she was forced to sign a non-disclosure agreement (NDA) as part of a settlement agreement to prevent her from speaking out about his misconduct.
Since the initial revelations, more than 200 women have come forward with claims of sexual harassment, sexual assault and rape against Al Fayed, who sold Harrods in 2010 and died in 2023. The Metropolitan Police says it’s investigating new reports relating to incidents alleged to have taken place between 1979 and 2013. In October, it confirmed that between 2005 and 2023 it received 21 separate allegations against Al Fayed.
A Harrods spokesperson said in a statement that it ‘would not seek to enforce any NDAs that relate to alleged historical sexual abuse by Fayed that were entered into during the period of his ownership.’ The store also said that ‘We are utterly appalled by the allegations of abuse perpetrated by Mohamed Al Fayed […] we condemn them in the strongest terms. We also acknowledge that during this time as a business we failed our employees who were his victims and for this we sincerely apologise.’ It added that ‘the Harrods of today is a very different organisation to the one owned and controlled by Al Fayed.’
Dino Nocivelli, a partner at Leigh Day, one of the law firms acting for alleged victims in the UK, the US and elsewhere, says Harrods has a duty to go further to ensure the full extent of the cover-up is exposed. ‘Even if Harrods is saying it won’t enforce [the NDAs], have they directly told the affected women that?’ he says. ‘It is wrong that women may still be in the dark about such an important issue.’
Legal confidentiality is still being used to hide misconduct and criminal behaviour
Zelda Perkins
Co-Founder, Can’t Buy My Silence
Harrods has told Global Insight that there were ‘no NDAs attached to settlements made since 2023 under the current ownership’, but declined to comment on how many NDAs had been signed while Al Fayed owned the business.
Al Fayed was previously investigated by the police in 2008 for allegedly assaulting a teenage girl at the store, but the case was dropped the next year. He denied all allegations.
Nocivelli says the latest scandal demonstrates that workers need greater legal protections against the misuse of confidentiality agreements. ‘These women have unfortunately had to wait decades to feel able to disclose their abuse,’ he says. ‘We need to change that because it means that they have not been able to get the support they needed, abusers have been able to continue to abuse and to avoid facing justice at an earlier stage.’
Although it’s unclear how many NDAs are linked to the recent allegations, the scandal has refocused attention on the UK’s slow progress on this issue. ‘Legal confidentiality is still being used to hide misconduct and criminal behaviour,’ says Zelda Perkins, former assistant to Harvey Weinstein who broke her own NDA in 2017 to expose the film producer’s sexual misconduct.
Perkins is co-founder of Can’t Buy My Silence, which campaigns to ban the misuse of NDAs globally. The group’s efforts to create a voluntary pledge for UK universities to stop misusing NDAs ultimately contributed to the Higher Education (Freedom of Speech) Bill becoming law in May 2023. In July however, the UK’s new government put implementation of the legislation on hold pending a review, over concerns that the legislation ‘could expose students to harm.’
Progress on broader legislation outlawing the misuse of NDAs has also stalled. While a clause was added to the UK’s Victims and Prisoners Bill to clarify that NDAs would no longer be legally enforceable if they prevented victims from reporting criminal conduct or accessing advice, this hasn’t been enacted despite the Bill receiving Royal Assent in May. A government spokesperson told Global Insight it was ‘carefully considering implementation’ of the amendment and ‘will be setting out our timetable for delivering this as the work progresses.’
Recent examples of high-profile ‘draconian NDAs’ underline why the law needs to change, says Ed Mills, Diversity and Inclusion Officer on the IBA Employment and Industrial Relations Law Committee and a partner at Travers Smith in London. ‘This legislation helpfully makes it clear that such NDAs are rendered void to the extent they prevent victims from reporting a crime or accessing legal or other support,’ he says.
Mills and Perkins both welcome the implementation of the UK’s Worker Protection Act in October, which will impose a duty on employers to take proactive steps to prevent sexual harassment of their employees in the workplace.
The Al Fayed scandal has also refocused the spotlight on the role of the legal profession in facilitating the misuse of NDAs to cover up sexual crimes.
In February 2024, the Legal Services Board (LSB), which acts as the oversight regulator for legal services watchdogs across England and Wales, published a report focusing on the conduct of lawyers in the misuse of NDAs.
Richard Orpin, Director, Regulation and Policy at the LSB, tells Global Insight that the research revealed ‘weaknesses in the protections offered by existing legislative and regulatory frameworks, which need to be addressed.’ Orpin says the LSB will run a consultation exercise in 2025 to examine any necessary changes that could ‘clarify, support, and incentivise professional ethical conduct that upholds the rule of law.’
In August the Solicitors Regulation Authority of England and Wales (the ‘SRA’) issued a second warning notice about the risks posed by NDAs. An SRA spokesperson told Global Insight that since its first notice in spring 2018, the regulator has carried out 64 investigations into sexual misconduct linked to NDAs. Of these, two rebukes have been issued, one case was stayed at the Solicitors Disciplinary Tribunal and 12 cases are ongoing.
While Perkins is encouraged by the media’s framing of the Al Fayed scandal as a ‘systemic issue’, she believes only legislation will lead to true culture change across the profession. ‘I still feel the same as I felt in 2017 that, until legislation really changes, this is not going to go away,’ she says. ‘The issue with power is it is still in a position to buy justice.’
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