Non-Disclosure Agreement in Workplace Sexual Harassment

INTRODUCTION

Non- disclosure agreements (NDAs) are a dangerous tool used to supress the testimonies of women who have suffered workplace sexual harassment (WSH). The idea that women’s testimonies are overlooked or not believed when signing an NDA is a serious issue. Thus, I feel it appropriate to consider NDAs in line with epistemic injustice. This is the “distributive unfairness in respect of epistemic goods such as information or education” which leads to an injustice based on one’s capacity as a “knower”.[1] This stem from prejudices held about a speaker and feeds in to how credible they are perceived to be by the listener.[2] Consequentially, women are prevented from being able to rationalise their own experiences.[3]

I will argue that the law offers very few protections for victims of epistemic injustice when signing a NDA for WSH, and that instead of shielding women from it, the law instead facilitates it. Therefore, to a significant extent, the law provides very few protections from epistemic injustice when signing a NDA for WSH. Consequentially, this paper will assert that NDAs for WSH should be banned and that the landscape which is left behind will need to be reformed to provide better protections. This paper will be split into 4 chapters:

The first chapter seeks to demonstrate the scale of WSH, as well as what it means to women. Whilst the Equality Act 2010[4] provides a definition, I will argue that this does not reflect a woman’s experience and so a predominantly radical feminist perspective will be used to demonstrate what it is, and why it occurs. I will find that WSH is a gendered issue which is founded upon a socially constructed, gendered power dimension which exists to subordinate women. I will use this idea to look at why women’s testimonies are often overlooked within the workplace.

Chapter two will explain what a NDA is, and why they are significant. It will also explore both soft law and legislative protections that are in place, such as the Equality Act 2010 and the SRA warning, but most importantly, I will introduce the Public Disclosure Act 1998[5] and the “public interest” requirement.[6] In doing so, the case of Chesterton Global Ltd & Anor v Nurmohamed &Anor[7] shall be introduced which lays out the requirements for a disclosure to be in the “public interest”. This will play a significant role within this paper as it is one of the only legislative protections for those either signing an NDA, or for those who have signed and want it to be voided.

Chapter three will introduce the philosophical concept of “epistemic injustice” and then utilise this understanding to argue that women who are victims of it will likely struggle to meet the requirements imposed by Chesterton. I will go through each of the four requirements to demonstrate this. In turn, I will argue that the law consequentially facilitates epistemic injustice upon signing an NDA. The same rhetoric will be applied to the other legislative protections mentioned in chapter 2.

Finally, chapter 4 will argue that under this premise, NDAs should be banned for WSH. However, I will also recognise that NDAs will not eradicate the issue of epistemic injustice from WSH complaints, and other mechanisms will need to be applied to provide better protections for victims.

Throughout this essay, I will utilise a predominantly radical feminist perspective. Whilst this has been criticised by some scholars for failing to provide solutions for women on an individual level, given it focusses on the root cause of issues,[8] I find that a systematic approach is suitable for a systematic problem. However, in recognition of this criticism, I will also draw on the use of studies throughout to explore a woman’s experience on an individual level. 

CHAPTER 1- SEXUAL HARASSMENT

This section will outline the prevalence of SH within the workplace to demonstrate it is still a prominent issue that women are facing. Next, I will outline the legal definition of SH and compare it to how women view SH, using a predominantly radical feminist perspective. Finally, using this understanding, I will seek to demonstrate how these same attitudes can be used to explain why women’s testimonies are often overlooked, particularly by those in leadership positions upon reporting SH within the workplace.

Chapter 1.1 The Prevalence of Sexual Harassment

Workplace sexual harassment (WSH) is a dangerous epidemic for women. Over the past 7 years, we have seen much of this surface; 2017 was characterised by the rise of the #Metoo movement which saw archvillain Harvey Weinstein’s decades of SH come to light.[9] Phillip Green’s scandal came next in 2019, having been accused of groping female staff.[10] In 2021 Mike Hill, a labour MP, was found to have repeatedly sexually harassed parliamentary staff when they rejected his advances.[11] David Warburton, a conservative MP was suspended from Parliament in 2022 for similar claims.[12] Finally, in 2024 the CBI attempted to cover up the SH of more than a dozen members of staff with non-disclosure agreements.[13] As Hoffspiegel notes “there has been sexual harassment in the workplace since there has been a workplace”.[14] Clearly, this is showing no signs of slowing down.

Worryingly, the government does not collect statistics on WSH. The responsibility of assembling this data falls to organisations such as the Trade Union Congress. Their statistics show that over 2 in 3 women have suffered SH in the workplace[15] and 57% of these claims were for women saying they have experienced 3 or more incidents.[16] This is staggering in comparison to 1 in 5 men[17]. Notably, over 81% of those women reported that the perpetrator was a man[18], in comparison to 10% of women reporting the perpetrator was female.[19] Whilst this indicates women too can be perpetrators, there is a disproportionate number of offences directed towards women by men.

Yet, 20% of all SH cases reported within the workplace stem from an authority figure such as a direct manager.[20] The “Everyday Sexism” project (ESP) exists to demonstrate everyday instances of sexism through anonymous submissions, which helps to illustrate this issue.[21] One submission recounted how her manager “switched off the light and proceeded to attempt to bend [her] over the desk”.[22] Another testimonial noted “I did not dare complain because the sexist person held a top management position”.[23] It is concerning that in the 21st century, women still feel uncomfortable within their place of work because of the actions of their superiors- the very people who are supposed to provide guidance and wisdom. Instead, this dynamic is exploited at the expense of the victim’s dignity and safety. It is this dynamic I wish to explore further within this chapter.

Chapter 1.2 What is workplace sexual harassment?

The legal definition of SH is provided by the Equality Act 2010[24]. It states that SH is when someone engages in unwanted conduct of a sexual nature that has the purpose or effect of violating another's dignity or creating an environment that is intimidating, hostile, degrading, humiliating or offensive.[25] Examples of this include verbal, non-verbal or physical conduct including unwelcome sexual advances, touching, forms of sexual assault, sexual jokes, displaying pornographic photographs or drawings or sending emails with material of a sexual nature.[26] This can be one single incident,[27] or an experience a victim has had to endure for years.[28] There is no “one way” to experience SH.

However, feminist legal academics have illustrated through theory and empirical research how legal principles fit within a context that often does not reflect a woman’s reality.[29] Thus, to understand what WSH means to women, feminist scholarship is a vital tool.

Radical feminism views WSH to be founded upon a gendered power dimension present within the workforce, which manifests to oppress women as a means of maintaining male superiority. This is not because of individual incidents of wrongdoing but is rather the product of larger systematic failures. Mackinnon argues that WSH can be defined as “the unwanted imposition of sexual requirements in the context of a relationship of unequal power”[30]. This suggests there is a hierarchy of power, not only in an employee/ employer relationship, but at the root of gender itself. This is especially prevalent in cases where the SH has been at the hands of a superior.

However, James disagrees with this characterisation stating that power does not provide an adequate explanation as to why women are harassed by their peers or those in senior positions by their juniors. Yet, Connel’s theory looks at how gender itself is a system which privileges the concept of hegemonic masculinity[31]- there is a preference placed on white, heterosexual men in the workplace, even if they are considered an equal position of organisational power as a victim. This theory has been explored Cockburn’s study which found that women’s presence in the workplace can become a “political issue” which has to be reasserted through SH.[32] Whilst men and women are often held to different standards of sexual harassment,[33] Connel’s theory recognises the intricacies and subjectivity of gender[34]. From this, there is the imposition that women should be seen as sexually available to men in both the public and the private spheres, which, as in much radical feminist work, should be challenged. Mackinnon summarises this neatly by noting that SH is “social wrong and a social injury which is felt on a personal level”.

Chapter 1.3 Why are women’s testimonies overlooked?

Believing a victim after an incident of SH is vital in bringing about a resolution. However, there are a plethora of theories as to why this is not the case: lack of evidence,[35] a victim not meeting stereotypical “victim behaviour”[36] and an inability to communicate the extent of the harassment due to PTSD.[37] Whilst these theories are important when there is one word against another, people turn a blind eye to harassment that they themselves have witnessed. Thus, it is possible that someone can observe harassment, and yet a woman’s testimony is still overlooked.

 As noted in section 1.2, WSH is founded upon a hierarchy of gendered power which manifests to oppress women as a means of maintaining male superiority. When Mackinnon looked at the impact of this on credibility, she found that “it typically took 3 to 4 women testifying that they had been violated” to make a dent in a man’s denial. Thus, “that made a woman for credibility purposes one quarter of a person”.[38] Therefore, I will argue, the resolution of a complaint presents an extension of this oppression. I will use a victim testimonial from the “Can’t buy my Silence” campaign to demonstrate this:

After attending a firm party with the drunk CEO, the victim “looked down to see his hand come from behind, come between [her] legs, and grab and massage [her] vagina area”. Yet, after the board of directors had been informed by herself and a colleague who witnessed it, “on Monday morning [she] was fired. No real reason was given”. Her colleague, who was male, was also fired.[39]

 When a man is given a leadership position, this imposes a “centrality of power” which provides access to resources, freedom of movement, valuable connections and status which can be used against a victim in a SH claim.[40] Thus, those who hold peripheral positions, regardless of gender, are reliant on those connections and the resources of the leader to further their careers.[41] In turn, this creates a one-sided relationship of dependency between peripheral workers and those who hold power within an organisation. As Hershcovis argues, “people who benefit from favours from the connected harasser(s) may be reluctant to give up those advantages” and are more willing to turn a blind eye to certain behaviours[42]. This can see with the board of directors who have been informed of the harassment by both the victim and the eyewitness. Consequently, those in leadership positions have the means to control the circulation of information, as well as how it is internally handled, not only through their own connections and resources but also through their staff turning against female victims to support their own vested interests.

This dimension of a woman being systematically oppressed to being an “other” can feed into day-to-day work as women experience more “structural holes” between themselves and their male colleagues, especially in male-dominated professions.[43] Kanter argues this is because men in these environments often have similar work and personal interests.[44] Women who build bridges with men can find that they are much weaker and “surface level” because it is considered “illegitimate” for a woman to be in that area of employment, particularly if it is a traditional male role.[45] However, I find this is a surface level presumption that does not consider the root causes. As previously mentioned, women in certain positions can become an inherently political issue because of the gendered dimension. This is backed up by McDowell who found in her study, women were made to feel out of place by a “machismo culture” which supported crude bodily humour and pin ups.[46] However, being part of this culture is imperative as it plays a role in how likely a colleague will speak up to protect a victim.[47]

Thus, it is interesting that the male colleague who witnessed the attack both spoke up on the victim’s behalf and was also fired. However, under Mackinnon and Connels model, it could be said that those who do not conform to the traditional idea of “masculinity”, such as the “machismo culture” means they too are disempowered for not adhering to these male norms or to the privileged model of heterosexual masculinity. As noted, men are held to entirely different standards of sexuality which are present to maintain the gender order. Thus, it seems that SH is also being used as a tool to police “doing gender” and this can feed into male bystanders too.

Nonetheless, what is evident is that despite having eyewitnesses, the CEO’s behaviour was overlooked by the board of directors, and his testimony was prioritised. Notably, this victim was forced to sign an NDA upon losing her job, which also suggests the board of directors recognised there was some legitimacy to her claim.

CHAPTER 2- SEXUAL HARASSMENT AND NON- DISCLOSURE AGREEMENTS

Having established that SH is present within our workplace and how it predominantly affects women, it is important to consider how this is being covered up. Therefore, I will first explain what a non-disclosure agreement is and how they have evolved to become a silencing mechanism for victims of WSH. Next, I will outline how the legislative protections that we have in place often do not provide enough protection for a victim. Specific attention will be paid to the Public Interest Disclosure Act 1998 and what it means for a claim to be “in the public interest”.

Chapter 2.1- What is a Non-Disclosure Agreement and why are they significant?

There is varying terminology used to describe agreements where silence has been purchased. A non-disclosure agreement (NDA) is an American reference to what the English term a “confidentiality agreement”.[48] However, this paper will utilise the term NDA because that is more universally recognised. This can be a standalone contract, or included in other documents such as a settlement agreement which is often accompanied by a sum of money at the end of employment.  NDAs have legitimate aims, such as protecting intellectual property, but there is evidence they are being exploited.

The House of Commons Women’s Equality Committee (HCWEC) released a report revealing the widespread use of NDAs to cover up cases of WSH, noting that “our report shows that in many cases signing a non-disclosure agreement is not benign” and that we are facilitating a “cover up- culture”[49]. This has shifted the essence of a NDA from being a contractual and legal obligation, to a “remedy” which is rarely adequate. As Pagen argues, NDAs can be likened to the 21st century equivalent of a “skulls bridle”, a medieval torture device designed to silence women with “unruly tongues”.[50] They have also been accused of the “dearth of caselaw” surrounding WSP since they remove the conversation around it from society.[51]

 However, signing an NDA implies there is a certain legitimacy to the information which one party seeks to keep hidden[52] and so silence, whilst an abstract concept, obtains value. You can’t have an NDA without silence, but you can have silence without an NDA. Such value means victims are often pressured into NDAs to obtain it.  A government survey found that 91.3% of women thought that signing an NDA for WSH was their only option[53], and 52.2% felt they were forced to sign.[54] A victim testimonial stated, “the encouragement of signing the settlement agreement was made at the end of the day whilst I showed clear signs of despair and hesitation in signing my rights away”.[55] Clearly her feelings, which were expressly shown, did not become a factor in the employer's decision to pursue the NDA. Instead, her vulnerability became a tactical tool. Thus, more value was placed on silence than her well-being, demonstrating both the value of silence, as well as the pressure employers are willing to impose to obtain it.

Chapter 2.2- Legal Advice and the SRA warning notice

As a protective mechanism against forcing women into settlement agreements, the Equality Act 2010 imposed legislative protections. It stated that a “qualifying settlement” requires that “the complainant has, before entering into the contract, received advice from an independent adviser about its terms and effects”.[56] This advice does not have to be given by a qualified lawyer but can be provided by an employee at a trade union or a worker at an advice centre.[57] However, the law does not stipulate this needs to apply to NDAs, but rather this takes effect only when the NDAs is part of a settlement agreement. Thus, many victims go without such legal advice. Furthermore, there also seems to be an assumption that obtaining legal advice will provide a basis of fairness between a victim and their employer, which is by no means accurate.

20% of respondents in the 2023 Legal Services Board report detailed how they had no access to legal advice.[58] Another victim noted that “throughout the process the lawyers acting for the company were aggressive […] They breached guidelines around the use of NDAs and seem to feel no requirement for a duty of care”.[59] Therefore, whilst these safeguards are implemented, they are clearly not being used effectively. Further discussion of this will take place in chapter 3.

Yet, in 2021, the SRA released a warning notice[60] to combat this power imbalance after the Presidents Club Dinner scandal. This saw waitresses being forced to sign NDAs on the spot, with no legal advice, nor a copy of the NDA to keep, and then being sexually harassed after the fact.[61]  The SRA rightfully reminded solicitors “to not take unfair advantage of the other party when dealing with NDAs”[62] and that they have a duty to uphold key principles such as acting “in a way that upholds the constitutional principle of the rule of law and the proper administration of justice”.[63] Whilst this has been fundamental in changing the way the legal industry has approached NDAs and giving legal advice,[64] the SRA’s warning has not had the reach I suspect it intended when it was released. For example, the 2023 thematic review found that only 64% of firms were aware of the notice.[65] Of those, a mere 12% did training specifically on NDAs and no firms did training catered towards vulnerable individuals,[66] which undermines the very point of the notice itself.

Chapter 2.3- Public Interest Disclosure Act

Given many victims do not have access to adequate legal advice, there is evidence that many do not realise that NDAs cannot be used to cover up a whistleblowing complaint.

The Public Interest Disclosure Act 1998[67] (PIDA) amended the Employment Rights Act 1996[68] (ERA), by setting out a list of protected characteristics designed to protect whistle-blowers from detrimental treatment or victimisation from their employer if their claim is in the public interest.[69] However, section 43J of ERA also notes that “any provision in an agreement to which this section applies is void in so far as it purports to preclude the worker from making a protected disclosure”.[70] Therefore, under the correct circumstances, a NDA can be voided if the employer has attempted to prevent a whistle-blower making a complaint.

Whilst there are six protected “qualifying disclosures” under PIDA, three of them are relevant to WSH:

Firstly, a criminal offence has been committed.[71] This can be utilised in numerous ways; SH can overlap with criminal behaviour such as assault, indecent exposure and stalking. The Protection of Harassment Act 1996 can also be utilised here.[72] However, this requires either two victims, or at least two occasions of harassment experienced by one victim, which is not easy to prove.[73] Secondly, there is a breach of a legal obligation, which includes (but is not limited to) those of the Equality Act 2010.[74] For example, an employer will be liable for the SH of an employee unless they have taken “all reasonable steps” to deal with it.[75] Yet, in October, a positive obligation will be placed onto employers to take “reasonable steps” to prevent the harassment.[76] Whilst an analysis of this is beyond the scope of this paper, this has been hailed “a big step forward”.[77] It will be interesting to see the impact this has and I invite scholars to do an updated comparison after its implementation. Finally, a health and safety risk has arisen.[78] Given SH poses significant risk to both a victims mental and physical health from stress and long- term effects such as PTSD, this protected characteristic is also utilised often.

However, the greatest issue lies in the “public interest” requirement. Whilst introduced in 2013 to separate “private” employment rights from “public” concerns with a wider impact,[79] it significantly increases the threshold to make a legal whistleblowing complaint. The case of Chesterton Global Ltd[80] sets out the test for whether a disclosure is “in the public interest”. More specifically, whether a disclosure which is in the private interest of a worker can be in the public interest because it serves the private interest of other workers too. The considerations are as follows:

1. The numbers in the group whose interests the disclosure served;

2. The nature of the interests affected and the extent to which they are affected by the wrongdoing disclosed;

3. The nature of the wrongdoing disclosed;

4. The identity of the alleged wrongdoer.[81]

This creates an interesting irony; whilst SH is considered a “social injury” because of the wider impact this can have on women, which is felt on a personal level by a victim, this does not mean that all SH claims meet this threshold; the law situates SH as simply a victim- based offence. The harms and consequences of these factors will be individually explored in Chapter 3.2.

CHAPTER 3- DOES THE LAW FACILITATE EPISTEMIC INJUSTICE WHEN SIGNING A NDA FOR WORKPLACE SEXUAL HARASSMENT?

Within this chapter, I argue that women can be victims of epistemic injustice, and as a result, this makes it hard to prove their claims are in the “public interest”, thus affording them less protection when signing an NDA or trying to prove an NDA is void. Thus, instead of protecting women from epistemic injustice, the law is facilitating it. First, I will elaborate on what epistemic injustice is and how this applies to women within the workplace. Next, I will go through each of Chesterton’s requirements in turn to demonstrate how this affects a woman’s ability to meet this requirement, as well as understand their own experiences of an NDA. Finally, I will also consider how other legislative and soft law protections such as legal advice and the SRA warning puts them in a no better position as their epistemic authority will always be less than the perpetrators.

Chapter 3.1 What is Epistemic Injustice and how does it apply to victims of NDAs?

Epistemic injustice is described by Fricker to be “distributive unfairness in respect of epistemic goods such as information or education” which leads to an injustice based on one’s capacity as a “knower”.[82] When applied in the context of a NDA, both the victim and the perpetrator of SH are “knowers”; they were present at the time of the incident(s). However, having discussed that prejudices are held against women in the workplace which prevent their testimonies from being taken seriously even if they have been witnessed, and that often women are forced into NDAs to cover this up, I will argue that women are being harmed epistemically as a result. Fricker offers two forms of epistemic injustice which shall be explored to demonstrate this: testimonial and hermeneutical.

Testimonial injustice is described by Fricker, to be “a kind of injustice in which someone is wronged specifically in their capacity as a knower”.[83] This can stem from “credibility deficits” or “credibility excess” whereby more credibility is imposed on one “knower” than the other.[84] Fricker’s own work focusses on the former. This can be seen through the discussion in Chapter 1.3 whereby victims of SH are not always deemed to be credible because of their gender, and thus more credibility is imposed upon the perpetrator by the listener. A discussion of this will take place in Chapter 3.2.3. However, it is grounded in how a speaker is perceived and how they are judged as a result.

Testimonial injustice, according to Fricker, causes Hermeneutical injustice which is when people lack the interpretive resources needed to make sense of their own experiences.[85] This lack of understanding occurs because these experiences do not fit existing concepts known to them. NDA’s in their very being remove the conversation of SH from the workplace, and thus removes the interpretive resource. However, epistemology recognises that knowledge is social and has social implications[86]- it can provide warnings, support and enlightenment. Therefore, it is questionable how a victim is supposed to make sense of their own experiences if they are unable to compare testimonies or gain support because of the presence of an NDA.

Whilst Fricker herself argues that SH is already an “existing concept” whereby a definition has been created for a set of behaviours,[87] as discussed, the law does not go far enough to understand a “woman’s experience”. If 80% of victims choose not to report WSH because they are unsure if the behaviour matches the prescribed legal definition,[88] it is questionable how “established” SH really is within our society. Therefore, if NDAs remove the “interpretive resource”, it stagnates the development of the law, as well as the collective understanding of what SH is within the workplace.

Chapter 3.2 The “Public Interest” Requirement and Epistemic Injustice

Under this basic starting point, I will argue that because women suffer epistemic injustice within the workplace, it will become incredibly difficult to meet the threshold of the “public Interest” requirement which is imposed by Chesterton. Thus, the law is facilitating epistemic injustice, rather than protecting women from it. To prove this, I will go through each consideration in turn, to analyse how a woman’s epistemic authority is reduced and can often prevent them from, not only understanding their own experiences, but also proving the requirements imposed by the courts. In turn, this epistemically harms them as “knowers” because the laws designed to protect them silence them further.

Chapter 3.2.1- Requirement 1

Chesterton’s first consideration, that one must consider “the numbers in the group whose interest the disclosure served”[89] is full of confusing contradictions within the judgment and imposes an unrealistic expectation on a victim of an NDA to prove others are affected. For example, the courts contradict this requirement at the beginning of the judgment, stating the “multiplicity of workers sharing the same interest is not enough”[90] but then Supperstone comments later that a “relatively small group […] may be sufficient”[91] to meet this threshold, entirely juxtaposing himself again. Whilst I recognise the Tribunal intended for this to be interpreted that purely the numbers affected does not amount to being “in the public interest”, this still provides very little clarity on how to meet this requirement and when, if at all, it must extend outside the workplace.

This is significant; under Chesterton, it seems the courts are wanting the “social injury” of SH to have already extended to meet a numerical requirement which is neither preventative nor realistic for a victim of an NDA. This ignites hermeneutical injustice as it deprives “a victim from having access to the self-interpretational dimension of rational agency”.[92] For example, within the workplace, if NDAs have been forced upon a number of women, whereby they cannot discuss their experiences amongst themselves, it is questionable how they are supposed to come to a numerical conclusion without breaking their NDAs to find out— the “interpretive resource” has been removed. Whilst this will not apply in every instance as not every employer imposes NDAs upon women, certain organisations such as the CBI are notorious for it,[93] and it is known as part of their culture. However, the use of consciousness raising is a foundational part of the development of feminist theory and activism, as well as the law itself.[94] Without victims coming forward to reflect on their experiences or compare ideas, stagnation and development becomes a very real concern and prevents women from participating “in the shaping of dominant interpretive resources” which is key in epistemic practice and solving issues like this.[95] Thus, by imposing an unrealistic numerical requirement on an NDA victim, epistemic injustice will continue within the workplace.

However, if SH is required to extend outside of the workplace to meet this requirement, this poses a limitation for using radical feminism scholarship to look at solutions of the Tribunals. Under the current premise, the Tribunals are viewing SH as something which pervades the public/ private distinction, which is what radical feminist scholarship applauds.[96] Mackinnon famously wrote “the private is public for those for whom the personal is political”.[97] Whilst this mechanism is useful for understanding the construction of SH as a concept and for explaining why it occurs, it is not providing a remedy for a victim on a personal level which is vital in cases such as NDA because they have significant but individual effects on different people. The courts here by inferring that harassment may have to take place outside of the workplace and thus go beyond these boundaries, provides little representation for those within.

Whilst whistleblowing laws aren’t only about providing personal remedies as there are other mechanisms under employment law which can be utilised such as tribunals, it must be noted that PIDA is often the only mechanism available for a victim to break the NDA that they have been pressured to sign or have signed and not realised it was void.[98] As Higgins notes private spheres “may actually capture a difference that is meaningful to women’s experiences”.[99] Thus, whilst SH as a construct might pervade these boundaries, remedies for the likes of NDAs should be explored on an individual level.

Nonetheless, this paints a worrying picture: many victims within the workplace may have been victim to SH, but without their voices, they are unable to challenge it. Having mentioned that most women choose not to come forward because they are unable to identify whether their experience is considered WSH, this only exacerbates this very issue in finding further victims which is an incredibly vicious and dangerous cycle for women to be at the centre of.

Chapter 3.2.2- Requirement 2

The second consideration of Chesterton that “the nature of interests affected”[100] also facilitates hermeneutical injustice under the premise that someone can be epistemically disadvantaged by someone else being discriminated against. For example, Chesterton reminds us within the judgement that a disclosure affecting an “important interest is more likely to be in the public interest than a disclosure of trivial wrongdoing”[101] — essentially, the purpose of this is to draw attention to “wider public interest and not just a claimants own private position”.[102] However, there are disparities between what the law would consider an important interest is, given the definition is purely victim- based, in comparison to how radical feminism treats SH.

For example, the law focusses purely on the individual and the impact of the harm on them by. However, radical feminism recognises that SH is not a victim-based offence, rather it is one which permeates society across different spheres.[103]Therefore, any cause of WSH would be considered a small part of a bigger issue which needs to be addressed, and so it is an inherently important topic. Clearly there is a dichotomy between how a radical feminist would interpret an “important interest” and how the law would. Yet, without guidance, this idea remains entirely open and subjective to judges’ discretions. Whilst Gingell argues that SH will always be considered an important issue given it is a social problem,[104] I question how he was able to come to this conclusion when there is insufficient caselaw produced by the Tribunals to create any form of precedent on this issue. Therefore, one cannot say with sufficient certainty this will be the case and thus, such ambiguity can prevent a victim questioning their NDA.

In this instance testimonial injustice is invoked. Byskov argues this is the result of a systematic prejudice regarding which social groups have authority to interpret the world[105] which to an extent, I agree. The Tribunals have not recognised that when imposing this consideration of subjectivity that this will be interpreted by a broad range of judges, as well as victims. Whilst I recognise this is a criticism of the gendered structure and opinions of the courts themselves, which is beyond the scope of this essay, it must be noted that SH laws are viewed differently by different judges, especially when they are male.

This is demonstrated using the case Lourin v University of Oxford[106] whereby a woman claimed she was sexually harassed because her colleague “had attempted to hug and kiss her”.[107] However, because it “was not forceful or aggressive”[108], despite her making it apparent that the behaviour was unwanted through numerous written grievances, the claim was struck out. The comment that he “viewed her like a daughter”[109] was imperative for proving his perception. Notably, the male judge focussed on his perception of his actions without considering that his perceptions should have been swayed by her continuous complaints. Therefore, like Byskov argues, this posits the male judges voice as being that which guides how a victim can see her experience. He may have viewed the conduct as acceptable, but this caused the claimant significant distress. Radical feminism recognises that men and women are wrongly held to different standards,[110] thus there are inevitable disparities on how it will be viewed. Therefore, under this premise, it could make a victim incredibly cautious about whether their claim is considered “important enough” for a judge to act in their favour and thus prevent them understanding that those experiences are not acceptable. Victims will remain ignorant of their own oppression, and thus, their “interpretive resource”.

Chapter 3.2.3- Requirement 3

Thirdly, “the nature of the wrongdoing disclosed”[111] should also be considered, but the addition that “deliberate wrongdoing is more likely to be in the public interest than disclosure of inadvertent wrongdoing”[112], produces hurdle which will likely be too high for a victim to prove given the testimonial injustice they often suffer from.

Given victims of SH can suffer from testimonial injustice, it’s debateable how they are expected to prove their conduct was deliberate. Recent theories of testimonial injustice suggest that the identity of a “knower” matters to our epistemologies.[113] Having discussed in Chapter 1 that women within the workplace can be an inherently political idea, particularly when there is a strong “machismo culture”,[114] or if colleagues have something to gain from protecting the perpetrator,[115] this can subconsciously alter the affording of credibility. Collins argues that “epistemology points to the ways in which power relations shape who is believed and why”[116] to which I agree but offer a caveat. SH in the workplace is founded on a gendered power complex between men and women which can be enhanced if the harasser is in a leadership position. Thus, it is not always a case that a victim is believed or not, like Collins suggests, but rather there is a preference as to where credibility is afforded shaped upon this dynamic. Therefore, proving conduct was deliberate is an unnecessarily high burden to place on a victim who does not have the support from their colleagues to back up their claims. Even when they have witnessed the SH, it’s not guaranteed they will support her. Given most SH is conducted under the waterline, with Cortina using the metaphor of an iceberg to demonstrate this,[117] it is possible that many victims will go without a resolution based solely on this consideration. I find this to be a significant oversight of the courts.

However, Luzzi disagrees with this characterisation as the victim being the only sufferer of testimonial injustice.[118] She argues that if a perpetrator, over the course of their life, has been afforded too much credibility, which causes him to become impervious to criticism and counter- evidence, it is not his fault that he has not developed into an epistemically virtuous subject and thus his conduct cannot be considered deliberate.[119] However, I fundamentally disagree with this characterisation. Whilst I recognise that this gendered power complex is a social construction of society,[120] in that men are often taught their behaviours,[121] one must remember under that same premise, they can also be un-taught. Mackinnon and Connels models recognise that gender is a social construct, and so unless such issues like testimonial justice are recognised, these behaviours will go unchecked. Thus, when proving wrongdoing is deliberate, it is vital that a victim’s testimony is considered first and foremost, and that perpetrators are still held accountable to it. Nonetheless, proving conduct is “deliberate” will remain a burden on a victim.

Chapter 3.2.4- Requirement 4

Finally, by considering “the identity of the alleged wrongdoer” whereby the courts note that “the larger or more prominent the wrongdoer, the more obviously should a disclosure about its activities engage the public interest”[122] this can subsequently lead to testimonial injustice and confusion because it requires a victim’s testimony to be placed against someone in a higher position. This idea seems simple to understand, but then the courts note “this should not be taken too far”[123]. Without further guidance, this begs the question of how far is too far? However, there is, again, a disparity between who the law may consider an “important identity” to be, in comparison to the feminist model and this could invoke the testimonial injustice of a victim.

I find that implication of the law that the wrongdoer must be “larger” or “more prominent” implies the perpetrator should be in a more significant social position than the victim, but there’s ambiguity where this line should be drawn.  Whistleblowing scholars have placed great emphasis on linking this to figures such as Weinstein[124] because of the value Perkins was able to contribute to the #Metoo movement as raising these “concerns publicly resulted in positive social contributions to the public sphere and private values”.[125] However, scholars seldom consider the position of employees who hold no significant value in a company but have nonetheless imposed similar wrongs.

However, Mackinnon and Connel’s models, suggest gender itself is a system which privileges white, heterosexual men within the workplace, regardless of the type of employee they are, which implies that any man using SH as a mechanism of domination should fall under this category. As Connel notes “relationships operate under a traditional paradigm characterised by the dichotomy of male dominance and female submissiveness”.[126] Thus, his position provides privilege which women don’t have. Yet, the HCWEC simply refer to this as a “fuzzy zone”,[127] which thus entirely undermines this idea. This is backed up by Quayle who argues that “sexual harassment can differ in many respects to other wrongdoing […] and the definition which constitutes can be ambiguous in comparison to wrongdoer”.[128] Therefore, it seems that the law has not quite been able to pinpoint exactly where the line is drawn between someone who is considered important and someone who is not. Consequentially, there seems to be an ignorance to the wider social issue that SH imposes. Without further guidance or caselaw (which is ironically lacking because of the extensive use of NDAs), it is questionable how a victim is supposed to contemplate breaking their NDA to find out, or worse not report because it was not conducted by an “important enough” perpetrator.

Under this premise, testimonial injustice may be invoked. Dotson argues that if a woman knows that an audience is hostile to her claims of harassment, she will choose to smother her testimony in response.[129]However, going back to Chapter 1.3, one can recognise that “structural holes” exist between men and women, whereby often valuable and friendly connections, particularly in male- dominated industries, struggle to be afforded. However, there is also the “centrality of power” which is present when dealing with someone in a leadership position, whereby they have connections, resources and ties which victims may not have. Therefore, like it was demonstrated within the scenario of Chapter 1.3, it is questionable whether a woman’s testimony will be overlooked in favour of a powerful perpetrator. As Fricker notes “social power is a capacity we have as social agents to influence how things go in a social world”.[130] Thus, by making it a requirement that the “identity” of the wrongdoer is significant, this is placing one victim’s testimony against someone with more resources, which can be a significantly intimidating prospect for a victim and could alter whether she chooses to come forward, and las Dotson suggests, may smother her testimony.  

Chapter 3.2.5- Final Remarks on the “Public Interest” Requirement

When viewing the “Public Interest” requirement more broadly, victims are harmed epistemically in their capacity as “knowers”; they are further silenced by the law which is designed to protect them. Thus, it can be argued that instead of protecting women from epistemic injustice, the law is instead facilitating it. Whilst I recognise the belief need only be “reasonable”[131] and workers can be “reasonably mistaken”,[132] it is, questionable how a layperson is supposed to make an “educated impression” confidently enough to risk breaking their NDA to find out if it’s voidable, especially given the legal ramifications for breach of contract. This will be discussed more next. However, Judge Serota QC calls this a “reasonable hunch”[133] but considering the amount at stake, it is not surprising victims choose not to speak up.  Boot backs this up, noting it “leaves potential whistle-blowers without sufficient certainty that their disclosures will be covered by the defence, leading many to err on the side of caution and remain silent”[134]. This is a dangerous idea given silence facilitates future offending. Clearly the law does not take into consideration the context in which this legislation is being applied, which makes it inadequate for purpose.

Chapter 3.3- Legal Advice, the SRA and Epistemic Injustice

The current advice framework offered to victims dealing with an NDA facilitates an unfair epistemic asymmetry between the victim and the perpetrator, which results in epistemic injustice. As noted, a settlement agreement is only valid provided the complainant has received advice before entering the contract.[135] However, this by no means puts the victim into a fairer bargaining position because of the greater resource’s employers have at their disposal. As discussed, some lawyers are not opposed to pressuring a victim into an unethical NDA.[136] Yet, the law surrounding protections for victims under PIDA offers a confusing landscape to follow after it has been signed. This reiterates why adequate advice is vital throughout the process but is something the law currently fails to offer.

The law incorrectly assumes that ensuring both parties access legal advice creates epistemic symmetry between a female victim of an NDA and a perpetrator. Prasad argues that when signing an NDA, the privilege and epistemic authority of the victim is always less than the perpetrator,[137] which to an extent I agree. Whilst I recognise that firms often contribute between £200- £500 towards a victim’s legal fees,[138] this is by no means enough to cover the complex advice necessary to deal with entering the contract or negotiating.[139] Consequentially, this privileges one “knower” over the other, in turn preventing expression and testimony within the bargaining of the contract, which cannot be considered epistemically symmetrical.

However, a limitation of this argument is that it could be a misogynistic suggestion to argue that all women are not capable of advocating for themselves. This could reignite the stereotype that all victims are “vulnerable, fearful and easily controlled and manipulated” which is a limitation of Prasad’s theory.[140] However, one must recognise the variation of women’s experiences. There are environments where these power relations are shaped by gender. Men, particularly those in leadership positions, hold that “centrality of power” mentioned in chapter 1.3, which privileges them with connections and resources which women do not have access to. As feminist epistemology notes, “women might fail to be knowers because they are deprived of the knowledge men have”.[141] Therefore, whilst it’s important to consider different victim experiences, simply receiving legal advice, with no parameters present regarding its depth or quality can remove woman’s epistemic resources, and thus her ability to bargain effectively.

Even the SRA’s warning notice has not gone far enough to eradicate this epistemic power imbalance. I recognise the limitation of this argument being that the notice has altered how many firms approach NDAs; it has placed emphasis on duties to not “take unfair advantage of the opposing party, whether unrepresented or represented by a lawyer”.[142] However, as the Legal Services Board points out, there is little clarity on what is considered unethical or unprofessional behaviour.[143] The idea that one “does not take advantage” suggests not using the victim as a means to an end or treating them badly as a means to gain.[144] However, this does not mean that the victim must be enriched in any way. Fundamentally, a solicitor has a duty to their client.[145] Under this premise, it is possible for a perpetrator’s solicitor to be “ethical” and still have the victim on the receiving end be less epistemically advantaged, providing they don’t actively attempt to disadvantage them in any way. Thus, women’s voices and their testimonies can still be overshadowed, despite this warning.

Consequentially, women will still suffer testimonial injustice despite the safeguards the current law has put in place. Langton argues that “once one acknowledges that where there are unequal distributions of social power, the distribution of credibility is likely to be distorted”[146] which is what is evident here. Women are not believed because they simply don’t need to be to get the resolution the perpetrator or employer wants. Again, this is not to say that this will apply in every instance. Women are not children “who ought to receive special protection”.[147] However, it is important to recognise that the law is “embodying and ensuring male control over women’s sexuality at every level”.[148] Such power provides the means to overlook testimonies and prevent women’s voices from being heard or acknowledged during the negotiation process and this is a wrong which is directed towards women specifically in their capacity as a “knower”, who is on the weaker end of the power imbalance present.

CHAPTER 4- HOW DO WE SOLVE THESE ISSUES?

Throughout this essay, I have demonstrated and argued that victims do not have the epistemic authority in place to be protected when signing an NDA. The result is the facilitation of epistemic injustice, rather than the protection of it. However, the government has made it clear they are opposed to banning all NDAs as there are legitimate commercial uses for them. Yet, recent developments within the Higher Education (Freedom of Speech) Bill[149] suggests they are not opposed to slimming down their use in certain areas.

Therefore, NDAs should be banned specifically for the use of WSH. However, the system left behind also needs to be reformed for this ban to be effective. I will therefore consider what the ban should look like, what problems remain, and how we can solve them through organisational and cultural responses. The recommendations I propose should significantly reduce epistemic injustice when dealing with WSH claims and bring the legislation in line with protecting women from it, rather than facilitating it.

Chapter 4.1- A Ban on NDAs?

Eradicating NDAs should be done legislatively and attached to the Worker Protection Act 2023 which is expected to come into force in September 2024.[150] This is the most suitable Bill to attach such reforms to given its contents introduce a duty for employers to take “reasonable steps” to prevent SH within the workplace.[151] Whilst previous Bills dedicated solely to NDAs have not yet passed a 2nd reading,[152] given the climate of impunity which has recently made the news with instances such as the CBI utilising NDAs as an “on the shelf” mechanism,[153] the public outcry resulting from that,[154] as well as the 76 public parliamentary submissions that have been received over the past four months,[155] one can hope this is enough pressure to encourage the government to reconsider its stance. Afterall, it noted recently in its last consultation that “they would carefully consider the committees responses”. [156]

However, numerous scholars have criticised the idea of banning an NDA entirely for WSH. Wagner argues that in doing so it “reflects the dominant patriarchal view that women are inferior and incapable of rational choice”,[157] which to an extent I can sympathise with. Afterall, the idea that women are able to formulate and express their own ideas as individual women is vital to any feminist movement.[158] That is something that one cannot deny. However, NDAs through epistemic injustice removes a woman’s ability to make sense of her experiences. If the conversation surrounding SH is removed, and so is the “interpretive resource”, I question how autonomous a woman can really be if they are denied the ability to understand the behaviour imposed upon them and make decisions from that limited understanding. This is not to say it will apply to every woman. Yet, conversation is vital for the law’s development and the understanding of women’s experiences.[159] Furthermore, whilst women are theoretically autonomous,[160] it would be too bold to assume that they get to enjoy that autonomy when an NDA is being signed. As mentioned in Chapter 2, pressures are imposed on women and many feel that they have no other option. If women truly want autonomy, NDAs are not the place to look for it. Thus, they should be banned for WSH.

Within the ban itself, there needs to be clear guidance as to what is considered sexual harassment. With the dearth of caselaw and precedent, I suggest the draftsman moves away from only considering the current legal definition imposed by the Equality Act 2010 and considers some of the ideas mentioned in Chapter 1.2. This will allow for the scope of SH to truly be addressed, as well as provide better guidance to women as to what SH is, which in turn re- introduces the “interpretive resource” that many women have been denied for so long. I invite other scholars to consider this idea, given the limited literature present within UK academia.

Yet, one must remember that banning NDAs for WSH will not prevent epistemic injustice from continuing within remaining remedies. If NDAs are banned, this will require a brief analysis of the current structures in place, as well as some proposed reforms to ensure that the ban is effective. 

Chapter 4.2- Tackling the Root Cause of the Problem

Having only an internal grievance system for women to access, which is the system left behind, despite a ban can still breed epistemic injustice. Medina suggests that hermeneutical injustices are “committed structurally or institutionally when there are structural conditions […] that favour certain hermeneutical communities and practices and disadvantage others”.[161] However, whilst ACAS has set out the procedures in which a victim might follow,[162] and how an employer may respond, which must meet ACAS’ minimum guidelines,[163] this again places the onus onto the employer to fix their own mistakes. This is not a “structural condition” which privileges the victim in anyway, particularly if SH is a cultural issue within the workplace. In fact, one victim testimonial noted that “a policy is not enough when there is a culture of acceptance and there are likely to be negative implications for you socially”[164]. It is questionable how a victim is supposed to make sense or rationalise the behaviour they have experienced, under this model, especially when epistemic practices include “naming analysing and challenging discrimination”[165]. This is backed up by Pickering who argues that without institutional measures that force management to listen and respond to workers, “wilful hermeneutical injustice can become a particularly salient feature in the workplace”[166]. Under this current model, this seems to be something many are denied. 

However, I recognise that the law has made significant process in introducing a new duty to take “reasonable steps”, which I imagine will make significant changes across industries and should be celebrated. Yet, this can only be enforced if a victim chooses to go to a Tribunal specifically about their SH claim. Whilst the Employment Tribunal was designed to be a “user friendly” facility,[167] this has been repeatedly questioned by scholars who have found that it has become increasingly more complex since it was introduced.[168] If a victim does not have the financial means to access a lawyer for advice on a settlement agreement, it’s questionable how they are supposed to pay for representation at a Tribunal. Whilst legal aid is available in some circumstances for discrimination claims,[169] this too has been criticised for the high eligibility thresholds.[170] Thus, whilst these changes are significant, they don’t go far enough to provide the level of enforcement required to encourage employers to implement these duties effectively and thus eradicate epistemic injustices from the workplace.

Chapter 4.2.1- Organisational Level

To combat this, I feel that ACAS should be given a more central role in dealing with SH complaints, particularly when the complaint is against an employee in a leadership position. Whilst they intervene prior to going to a tribunal,[171] it would be useful if they played a more significant role at the beginning. This is not to say that internal grievances should not be utilised; in many cases they do hold such a fundamental role of resolution and they can work effectively.[172] However, the idea that the “managers decision is final”,[173] unless a victim wants to go down the expensive route of a tribunal, seems rather unfair considering the aforementioned issues with culture and the “centrality of power” they are often afforded. By having someone look at the situation objectively, away from the cultural norms of the organisation from the beginning to provide a mediated response, it will place pressure on employers to listen to a victim’s testimony which is foundational to eradicating both testimonial and hermeneutical injustice.

Chapter 4.2.2- Cultural Level

However, this will not work as effectively unless the workplace is simultaneously making a conscious effort to deal with the internal attitudes of the employees and those in a management position. This does not mean converting all men into radical feminists; that would be unrealistic and as Fahs recognises, “feminism is not for “everybody” but should be seen as a “threat to the foundations of the status quo”.[174] Given testimonial injustice is the cause of hermeneutical injustice,[175] encouraging women’s testimonies to be believed and not overlooked should be the starting point.

From this, I think encouraging education within the workplace is essential. Radical feminist Thompson argues that “male domination […]is a social system. […] social structures are maintained through the commitment and acquiescence of individuals and can be eroded by the refusal of individuals to participate”.[176] This infers that if SH is something which is taught within a social system and maintained through men following the status quo, it is also something which can be “untaught”. Thus, by outlining to men exactly what is considered sexual harassment, how it impacts women and what the legal ramifications are for using SH as a means exert authority, such behaviours may start to erode. A limitation of this argument is that this will be a slow process, especially given Thompson’s model suggests it takes “individuals refusals” to bring an end to sexual harassment, this is not going to occur overnight. However, the long-term benefits of this should be considered.

How this is implemented will be fundamental to its success. For example, Freyd argues that the education of SH should not be confused with “training” as this is “associated with compliance and a rule- based process” which can be overcome with a “three-hour online module”.[177] Therefore, continual education could be a useful mechanism given this is a long- term resolution. However, I also recognise that one must be realistic about how willing a company will be to spend money on training, specifically if they see no issue within their workplace culture. However, this can be made as an extra edition to HR practices to keep costs minimal and can be implemented alongside other practices.

CONCLUSION

The current mechanisms in place for dealing with NDAs for WSH facilitate epistemic injustice within the workplace, rather than protect women from it. Therefore, it can be said that to a significant extent, the law does not protect women from epistemic injustice when signing a NDA for WSH. Throughout this paper, I have argued that WSH is still a very real issue for women and the current law does not accurately reflect a “woman’s experience”. However, I have also demonstrated how the same constructions of WSH can feed into whether a woman’s testimony is believed. From this, I have argued that women are often victims to epistemic injustice and thus find it difficult to meet the high thresholds for the “public interest” requirement, which is one of the only legislative protections for those who are either about to sign an NDA or have signed under pressure without realising it is invalid. Soft law protections such as the SRA, whilst altering how many within the legal industry operate, has not provided enough guidance for employers to follow and subsequently, epistemic injustice is facilitated through these failures. Furthermore, the requirement that those signing a settlement agreement must have access to legal advice is an optimistic idea as this does not provide a fair epistemic authority between an employer and a victim. Therefore, this paper has argued that NDAs for WSH should be banned. This should be a legislative ban followed by ACAS taking on a more central role and education being encouraged. These recommendations are founded in bringing a victim’s testimony back to the forefront of our considerations, which should in turn provide greater protections from epistemic injustice within the workplace.

BIBLIOGRAPHY

Case law

Babula v Waltham Forest College [2007] EWCA Civ 174

Chesterton Global Ltd & Anor v Nurmohamed &Anor [2017] EWCA Civ 979

Insitu Cleaning Co v Heads [1995] IRLR 4

Lourin v University of Oxford [2023] 8 WLUK 146

Munchkins Restaurant Ltd and another v Karmazyn and others UKEAT/ 0359/09

Legislation

Equality Act 2010, s26(2)

Higher Education (Freedom of Speech) Act 2023

Non- Disclosure Agreements Bill HC Bill 2022-23 (131)

Public Interest Disclosure Act 1998

Worker Protection (Amendment of Equality Act 2010) Act 2023

Journal articles

Abrams K, “From Autonomy to Agency: Feminist Perspectives on self- direction” (1998) 40 Wm. & Mary L Rev 805

Bell E, “Dangerous Knowledge: the Political, Personal, and Epistemological Promise of Feminist Research in Management and Organisation studies” (2020) 22 LJMR 177

Bell E, “Dangerous Knowledge: the Political, Personal, and Epistemological Promise of Feminist Research in Management and Organisation studies” (2020) 22 LJMR 177,188

Boot E, “The feasibility of a public interest defence for whistleblowing” (2020) 39 law and philosophy 1

Brand S, “Caution to clients: california’s mediation confidentiality statutes protect attorneys from legal malpractice claims arising out of mediation” (2014) 37 T Jefferson Law Review 369

Burt R, “The Gender of Social Capital” (1998) 10 Rationality and Society 5

Bushnell A, “reframing the whistleblower in research: truth tellers as whistleblowers in changing cultural contexts” (2020) 14 Sociology Compass 1

Byskov M, “What makes Epistemic Injustice an “injustice”” (2020) 1 Journal of Social Philosophy 1

Cortina L, “putting people down and pushing them out: sexual harassment in the workplace” (2021) 8 Annual review of organisational psychology and organisational behaviour 285

Dipaldi G, “Sexual Harassment at Workplace” (2020) 2 International Journal of Legal Science of Innovation 190,

Dotson K, “Tracking Epistemic Violence, Tracking Practices of Silencing” (2011) 26 Hypatia 236

Easteal P, “’She said, He Said’: Credibility and sexual harassment cases in Australia” (2008) 31 Women’s Studies International Forum 336

Epstein D, “Discounting Credibility: Doubting the Stories of Women Survivors of Sexual Harassment” (2020) 51 Seton Hall Law Review 289

Fahs B, “The Urgent Need for Radical Feminism Today” (2024) 49 the university of Chicago press 1,

Franke K, “What’s wrong with Sexual Harassment?” (1997) 49 Stanford Law Review 691

Freyd J, “so you want to address sexual harassment and assault in your organisation? Training is not enough; education is necessary” (2019) 20 journals of trauma and dissociation 489

Giladi P, “Epistemic Injustice: a role for recognition?” (2018) 44 Philosophy and social criticism 14

Goodmark L, “when is a battered woman not a battered woman? When she fights back” (2008) 20 Yale Journal of Law & Feminism 75

Grosser K, “Sexual Harassment, sexual violence and CRS: Radical Feminist Theory and a Human Rights Perspective” (2022) 177 Journal of Business Ethics 217

Hershcovis M, “See no Evil, Hear No Evil, Speak No Evil: Theorizing Network Silence Around Sexual Harassment” (2021) 106 Journal of Applied Psychology 1834

Hoffspiegel L, “Abuse of Power: Sexual Misconduct in the Legal Workplace” (2002) 9 Sexual Addiction & Compulsivity 113

Ibarra H, “Power, Social Influence and Sense Making: Effects of Network Centrality and Proximity on Employee Perceptions” (1993) 38 Administrative Science Quarterly 277,

Lockwood G, “A legal analysis of sexual harassment employment tribunal cases 1995- 2005” (2008) 50 international journal of law and management 316,

Luzzi F, “Testimonial injustice without credibility deficit (or excess)” (2016) 5 Thought: a journal of philosophy 203

MacMillan C, “Contracts and Equality: The Dangers of Non- disclosure Agreements in English Law (2022) 18 Eur Rev Contract Law 127

Martin Alcoff L, “on judging epistemic credibility: is social identity relevant” (2001) engendering rationalities 73

Martin P, “Why Can’t a Man Be More Like a Woman? Reflections on Connell’s Masculinities” (1998) 12 Gender and Society 469

McDowell L, “Capital Culture revisited: ex, testosterone and the city” (2010) 34 international journal of urban and regional research” 652

McKinnon R, “Epistemic Injustice” (2016) 11 Philosophy Compass 437

Pagen V, “21st Century Bridling: Non- disclosure agreements in cases of organisational misconduct” (2022) 76 Human Relations 1827

Pickering M, “Stereotypes, Prejudice, and Discrimination” (2019) core concepts in sociology, 316

Prasad V, “if anyone is listening, metoo: breaking the culture of silence around sexual abuse through regulating non- disclosure agreements and secret settlements” (2018) 59 Boston College Law Review 2507

Quayle A, “whistleblowing and accounting for the public interest: a call for new directions” (2021) 34 accounting, auditing and accountability journal 1555

Uggen C, “Sexual Harassment as Gendered Expression of Power” (2004) 69 American sociological review 64

Wagner R, “Women’s Autonomy in Non- Disclosure Agreements” (2021) 82 Montana Law Review 409

Books

Cockburn C, “In the way of women: men’s resistance to sex equality in organisations” (MacMillan Press, 1991)

Collins P, “intersectionality and Epistemic Injustice” (1st edn, Routledge, 2017)

Connel R, “Gender and Power: society, the person and sexual politics” (Stanford University Press, 1987, 1st edn)

Connor M, “Expert Testimony in Sexual Harassment Cases” (2007, 1st edn, Psychology Press)

Fricker M, “Epistemic Injustice: Power and the Ethics of Knowing” (Oxford, 2007, 1st edn)

Hornsby J, “Feminism in philosophy” (2000, Cambridge university press, 1st edition),

Langton R, “Feminism in Philosophy” (Cambridge University Press, 2000, 1st edn),

Levine J, “Small Groups” (Psychology Press, 2006,1st edn)

MacKinnon C, “Sexual Harassment of Working Women: a case of sex discrimination” (Yale University Press, 1979)

MacKinnon C, “Towards a Feminist Theory of the State2 (1989, 1st edn, Harvard University Press)

Mackinnon C, “Towards a Feminist Theory of the State2 (1989, Harvard University Press, 1s edn)

McFadden P, “Why women’s spaces are critical to feminist autonomy” (Vancouver Rape Relief & women’s shelter, 1995)

Medina J, “Varieties of Hermeneutical Injustice” (Routledge, 2017, 1st edn)

Mitchell B, “whistleblowing: the new law” (sweet & Maxwell London 1999)

Moore S, “Legal Aid in Crisis” (2017, 1st edn, Policy Press)

Rowland R, “Radical Feminism: Critique and Construct” (Routledge, 2013, 1st edn)

Thompson D, “Radical feminism today” (Sage Publications, 2001, 1st edn),

Cabrelli D, Employment law in context (4th edn, University of Oxford Preas, 2020)

Newspapers

“Harvey Weinstein timeline: How thew scandal has unfolded” (BBC News, 24th February 2023) <https://www.bbc.co.uk/news/entertainment-arts-41594672> accessed 30th November 2023

Claire Newell, “Sir Philip Green’s accusers: The allegations told for the first time” (The Telegraph, 8th February 2019) < https://www.telegraph.co.uk/news/2019/02/08/sir-philip-green-claims-revealed/> accessed 30th November 2023

Aubrey Allegretti, “Hartlepool Labour MP Mike Hill quits triggering red wall byelection”

Jamie Grierson, “List of sexual misconduct allegations made against MPs” (The Guardian, 18th May 2022) < https://www.theguardian.com/uk-news/2022/may/18/list-of-sexual-misconduct-allegations-made-against-mps> accessed 1st December 2023

Michael Savage, “Tories suspend David Warburton amid claims over sexual harassment and drug use” (The Guardian, 2nd April 2022) < https://www.theguardian.com/politics/2022/apr/02/tories-suspend-david-warburton-amid-claims-over-sexual-harassment-and-drug-use> accessed 1st December 2023

Anna Isaac, “Revealed: CBI uses gagging clauses to prevent discussion of sexual misconduct claims” (The Guardian, London, 26th March 2024) < https://www.theguardian.com/business/2024/mar/26/revealed-cbi-uses-gagging-clauses-to-prevent-discussion-of-sexual-misconduct-claims > accessed 30th March 2024

Maddison Marriage, “men only: inside the charity fundraiser where hostesses are put on show” (Financial Times, 23rd January 2018) < https://www.ft.com/content/075d679e-0033-11e8-9650-9c0ad2d7c5b5 > accessed 15th December 2023

[1] Chloe Westerman, “Update on the SRA’s thematic review of the use of Non- Disclosure Agreements in workplace complaints” (Farrer& Co, 19th October 2023) < https://www.farrer.co.uk/news-and-insights/blogs/update-on-the-sras-thematic-review-of-the-use-of-non-disclosure-agreements-in-workplace-complaints/ > accessed 8th January 2024

Anjil Raval, “CBI admits to using non- disclosure agreements to silence staff” (The Financial Times, London, 26th March 2024) < https://www.ft.com/content/ce27074a-7ee3-4eec-953b-89281f82f49f > accessed 10th April 2024

Gazette Newsdesk, “Legislation pledeged to prevent abuse of NDAs” (Law Gazette, 28th March 2024), <https://www.lawgazette.co.uk/news/legislation-pledged-to-prevent-abuse-of-ndas/5119223.article > accessed 15th April 2024

Websites

“Sexual Harassment has no place in the workplace #This is not working” (TUC) <https://www.tuc.org.uk/campaigns/sexual-harassment-has-no-place-workplace-thisisnotworking > accessed February 2024 Reports

“New TUC poll: 2 in 3 young women have experienced sexual harassment, bulling or verbal abuse at work” (TUC, 13TH May 2023) < https://www.tuc.org.uk/news/new-tuc-poll-2-3-young-women-have-experienced-sexual-harassment-bullying-or-verbal-abuse-work > accessed 10th January 2024

[1] Trade Union Congress, “Sexual harassment in the workplace” (TUC, 2023) <https://www.tuc.org.uk/sites/default/files/2019-09/SHConsultation_TUCRepsonse.pdf> accessed 2nd February 2024

[1] “About” (The Everyday Sexism Project, 2024) < https://everydaysexism.com/about> accessed 1st December 2023

Story 99” (Cant Buy My Silence) <https://www.cantbuymysilence.com/testimonies-1/story-99> accessed 2nd February 2024

The Public Interest Test” (Protect, 2024) < https://protect-advice.org.uk/who-is-protected-by-pida/public-interest/ > accessed 30th January 2024

“The Worker Protection Bill will become law” (Fawcett, 20th October 2023) <https://www.fawcettsociety.org.uk/news/the-worker-protection-bill-will-become-law> accessed 3rd March 2024

“Warning Notice” (Solicitor Regulation Authority, 12th November 2020) <https://www.sra.org.uk/solicitors/guidance/non-disclosure-agreements-ndas/  >accessed 17th November 2023

[1] “Sexual Harassment has no place in the workplace #This is not working” (TUC) <https://www.tuc.org.uk/campaigns/sexual-harassment-has-no-place-workplace-thisisnotworking > accessed

“Making a Claim to an employment tribunal” (ACAS, 18th October 2018) <https://www.acas.org.uk/making-a-claim-to-an-employment-tribunal > accessed 4th April 2024

“The Misuse of Non- Disclosure Agreements: call for evidence themes and summary of evidence” (Legal Services Board, Feb 2024) < https://legalservicesboard.org.uk/wp-content/uploads/2024/02/NDA-call-for-evidence-themes-and-summary-Feb-2024.pdf> accessed 13th April 2024

“SRA Principles” (Solicitor Regulation Authority, 30th May 2018) https://www.sra.org.uk/solicitors/standards-regulations/principles/ accessed 15th March 2024

“clean up the use of non- disclosure agreements (NDAs)” (Parliament.co.uk, 25th July 2018) <https://publications.parliament.uk/pa/cm201719/cmselect/cmwomeq/725/72508.htm > accessed 17th February 2024

“Written submission from a member of the public (NDA0099)” (Parliament Committee) <https://committees.parliament.uk/writtenevidence/103236/html/ > accessed 12th April 2024

Miscellaneous 

Governments Equalities Office “2020 Sexual Harassment survey” (GEO, 2019), 9

[1] “Equality Act 2010 Code of Practice: Employment Statutory Code of Practice” (Equality and Human Rights Commission, 2010), 96

Legal Services Board, “The Misuse of Non- Disclosure Agreement: Call for Evidence Themes and Summary of Evidence” (LSB, 2023), 18

House of Commons Treasury Committee, “sexism in the city: HM Treasury, Prudential Regulation Authority and Financial Conduct Authority Responses to the Committee’s sixth report” HC 2023-24 764)

Molly Mayer “Tackling sexual harassment in the workplace” (2020)

[1] https://www.fawcettsociety.org.uk/Handlers/Download.ashx?IDMF=8eabc7f1-07c0-4d7e-9206-de431524301e

[1] “A Guide to Discrimination Law: Legal Aid” (Rights of Women, 2023) <https://www.rightsofwomen.org.uk/wp-content/uploads/2023/12/A-guide-to-discrimination-law-legal-aid-dec-2021.pdf > accessed 16th April 2024

Further written submission from Pregnant then Screwed (NDA 0098)” (Committees Parliament, May 2019) <https://committees.parliament.uk/writtenevidence/103225/html/ > accessed 13th February 2024

House of Commons Women and Equalities committee, The use of non- disclosure agreements in discrimination cases (HC- 2017-19-1720), 36

House of Commons Women and Equalities Committee, The use of non- disclosure agreements in discrimination cases (HC 2017-19 1720) para 81

Matt Gingell, “Whistleblowing and the public interest test |Nick Singer| Bitesize UK Employment Law Video” (13th May 2021) <https://www.youtube.com/watch?v=hEjlfFAg8ws > accessed 10th February 2024 

Footnotes

[1] Miranda Fricker, “Epistemic Injustice: Power and the Ethics of Knowing” (Oxford, 2007, 1st edn), 2

[2] Ibid, 17

[3] Ibid, 148

[4] Equality Act 2010, s26(2)

[5] Public Interest Disclosure Act 1998

[6] Ibid, s.1

[7] Chesterton Global Ltd & Anor v Nurmohamed &Anor [2017] EWCA Civ 979

[8] Robyn Rowland, “Radical Feminism: Critique and Construct” (Routledge, 2013, 1st edn), 276  

[9] “Harvey Weinstein timeline: How thew scandal has unfolded” (BBC News, 24th February 2023) <https://www.bbc.co.uk/news/entertainment-arts-41594672> accessed 30th November 2023

[10] Claire Newell, “Sir Philip Green’s accusers: The allegations told for the first time” (The Telegraph, 8th February 2019) < https://www.telegraph.co.uk/news/2019/02/08/sir-philip-green-claims-revealed/> accessed 30th November 2023

[11] Aubrey Allegretti, “Hartlepool Labour MP Mike Hill quits triggering red wall byelection”

[12] Jamie Grierson, “List of sexual misconduct allegations made against MPs” (The Guardian, 18th May 2022) < https://www.theguardian.com/uk-news/2022/may/18/list-of-sexual-misconduct-allegations-made-against-mps> accessed 1st December 2023

[13] Michael Savage, “Tories suspend David Warburton amid claims over sexual harassment and drug use” (The Guardian, 2nd April 2022) < https://www.theguardian.com/politics/2022/apr/02/tories-suspend-david-warburton-amid-claims-over-sexual-harassment-and-drug-use> accessed 1st December 2023

[14] Lloyd Hoffspiegel, “Abuse of Power: Sexual Misconduct in the Legal Workplace” (2002) 9 Sexual Addiction & Compulsivity 113, 113 

[15] “Sexual Harassment has no place in the workplace #This is not working” (TUC) <https://www.tuc.org.uk/campaigns/sexual-harassment-has-no-place-workplace-thisisnotworking > accessed February 2024

[16] “New TUC poll: 2 in 3 young women have experienced sexual harassment, bulling or verbal abuse at work” (TUC, 13TH May 2023) < https://www.tuc.org.uk/news/new-tuc-poll-2-3-young-women-have-experienced-sexual-harassment-bullying-or-verbal-abuse-work > accessed 10th January 2024

[17] Trade Union Congress, “Sexual harassment in the workplace” (TUC, 2023) <https://www.tuc.org.uk/sites/default/files/2019-09/SHConsultation_TUCRepsonse.pdf> accessed 2nd February 2024

[18] Governments Equalities Office “2020 Sexual Harassment survey” (GEO, 2019), 9

[19] Ibid

[20] Ibid

[21] “About” (The Everyday Sexism Project, 2024) < https://everydaysexism.com/about> accessed 1st December 2023

[22] ibid

[23] Ibid

[24] N(4)

[25] Ibid, s.26(2)

[26] “Equality Act 2010 Code of Practice: Employment Statutory Code of Practice” (Equality and Human Rights Commission, 2010), 96

[27] Insitu Cleaning Co v Heads [1995] IRLR 4

[28] Munchkins Restaurant Ltd and another v Karmazyn and others UKEAT/ 0359/09

[29] Dipaldi Gupta, “Sexual Harassment at Workplace” (2020) 2 International Journal of Legal Science of Innovation 190, 192

[30] Catherine MacKinnon, “Sexual Harassment of Working Women: a case of sex discrimination” (Yale University Press, 1979), 1

[31] Patricia Yancey Martin, “Why Can’t a Man Be More Like a Woman? Reflections on Connell’s Masculinities” (1998) 12 Gender and Society 469

[32] Cynthia Cockburn, “In the way of women: men’s resistance to sex equality in organisations” (MacMillan Press, 1991)

[33] Katherine M Franke, “What’s wrong with Sexual Harassment?” (1997) 49 Stanford Law Review 691

[34] Christopher Uggen, “Sexual Harassment as Gendered Expression of Power” (2004) 69 American sociological review 64, 66

[35] Deborah Epstein, “Discounting Credibility: Doubting the Stories of Women Survivors of Sexual Harassment” (2020) 51 Seton Hall Law Review 289, 295

[36] Patricia Easteal, “’She said, He Said’: Credibility and sexual harassment cases in Australia” (2008) 31 Women’s Studies International Forum 336, 340

[37] Maureen O’ Connor, “Expert Testimony in Sexual Harassment Cases” (2007, 1st edn, Psychology Press), 

[38]

[39] “Story 99” (Cant Buy My Silence) <https://www.cantbuymysilence.com/testimonies-1/story-99> accessed 2nd February 2024

[40] Herminia Ibarra, “Power, Social Influence and Sense Making: Effects of Network Centrality and Proximity on Employee Perceptions” (1993) 38 Administrative Science Quarterly 277, 277 

[41] M. Sandy Hershcovis, “See no Evil, Hear No Evil, Speak No Evil: Theorizing Network Silence Around Sexual Harassment” (2021) 106 Journal of Applied Psychology 1834, 1837

[42] ibid

[43] Ronald Burt, “The Gender of Social Capital” (1998) 10 Rationality and Society 5, 8

[44]  John M. Levine, “Small Groups” (Psychology Press, 2006,1st edn), 37

[45] Ronald Burt, “The Gender of Social Capital” (1998) 10 Rationality and Society 5, 8

[46] L McDowell, “Capital Culture revisited: ex, testosterone and the city” (2010) 34 international journal of urban and regional research” 652

[47] Ronald Burt, “The Gender of Social Capital” (1998) 10 Rationality and Society 5, 8

[48] Catherine MacMillan, “Contracts and Equality: The Dangers of Non- disclosure Agreements in English Law (2022) 18 Eur Rev Contract Law 127, 132

[49] Hc 1720 “the use of non- disclosure agreements in discrimination cases”

[50] V. Pagen, “21st Century Bridling: Non- disclosure agreements in cases of organisational misconduct” (2022) 76 Human Relations 1827

[51] David Cabrelli, Employment law in context (4th edn, University of Oxford Preas, 2020), 405

[52] N(47), 132

[53] “Further written submission from Pregnant then Screwed (NDA 0098)” (Committees Parliament, May 2019) <https://committees.parliament.uk/writtenevidence/103225/html/ > accessed 13th February 2024

[54] Ibid

[55] “clean up the use of non- disclosure agreements (NDAs)” (Parliament.co.uk, 25th July 2018) <https://publications.parliament.uk/pa/cm201719/cmselect/cmwomeq/725/72508.htm > accessed 17th February 2024

[56] N(4), s.147(3)(c)

[57] Ibid, s.147(4)(b)

[58] Legal Services Board, “The Misuse of Non- Disclosure Agreement: Call for Evidence Themes and Summary of Evidence” (LSB, 2023), 18

[59] Ibid, 22

[60] “Warning Notice” (Solicitor Regulation Authority, 12th November 2020) <https://www.sra.org.uk/solicitors/guidance/non-disclosure-agreements-ndas/  >accessed 17th November 2023

[61] Maddison Marriage, “men only: inside the charity fundraiser where hostesses are put on show” (Financial Times, 23rd January 2018) < https://www.ft.com/content/075d679e-0033-11e8-9650-9c0ad2d7c5b5 > accessed 15th December 2023

[62] N(59)

[63] Ibid

[64] Chloe Westerman, “Update on the SRA’s thematic review of the use of Non- Disclosure Agreements in workplace complaints” (Farrer& Co, 19th October 2023) < https://www.farrer.co.uk/news-and-insights/blogs/update-on-the-sras-thematic-review-of-the-use-of-non-disclosure-agreements-in-workplace-complaints/ > accessed 8th January 2024

[65] Ibid

[66] Ibid

[67] N(5)

[68] Employment Rights Act 1996

[69] Ibid s.1

[70] N(67), s.43J

[71] N(5), s.1(a)

[72] Protection from Harassment Act 1996

[73] Ibid, s.1(A)

[74] Equality Act 2010

[75] Ibid, s. 109

[76] Worker protection (amendment of Equality Act 2010) Act 2023, s.1

[77] “The Worker Protection Bill will become law” (Fawcett, 20th October 2023) <https://www.fawcettsociety.org.uk/news/the-worker-protection-bill-will-become-law> accessed 3rd March 2024

[78] N(5), s.1(d)

[79] “The Public Interest Test” (Protect, 2024) <  https://protect-advice.org.uk/who-is-protected-by-pida/public-interest/ > accessed 30th January 2024

[80] Chesterton Global Ltd & Anor v Nurmohamed & Anor [2017] EWCA Civ 979

[81] Ibid

[82] Miranda Fricker, “Epistemic Injustice: Power and the Ethics of Knowing” (Oxford University Press, 2007, 1st edn), 9

[83] ibid

[84] Ibid

[85] Ibid

[86] Rachel McKinnon, “Epistemic Injustice” (2016) 11 Philosophy Compass 437, 438

[87] N(82)

[88] “Sexual Harassment has no place in the workplace #This is not working” (TUC) <https://www.tuc.org.uk/campaigns/sexual-harassment-has-no-place-workplace-thisisnotworking > accessed February 2024

[89] N(7), 34

[90] Ibid, 32

[91] Ibid

[92] Paul Giladi, “Epistemic Injustice: a role for recognition?” (2018) 44 Philosophy and social criticism 14, 152

[93] Anna Isaac, “Revealed: CBI uses gagging clauses to prevent discussion of sexual misconduct claims” (The Guardian, London, 26th March 2024) < https://www.theguardian.com/business/2024/mar/26/revealed-cbi-uses-gagging-clauses-to-prevent-discussion-of-sexual-misconduct-claims > accessed 30th March 2024

[94] Kate Grosser, “Sexual Harassment, sexual violence and CRS: Radical Feminist Theory and a Human Rights Perspective” (2022) 177 Journal of Business Ethics 217, 221

[95] N(91), 147

[96] Tracey E Higgins, “Reviving the Public/ Private Distinction in Feminist Theorising, (2000) 75 Chi-Kent Law

[97] Catherine A Mackinnon, “Towards a Feminist Theory of the State2 (1989, Harvard University Press, 1s edn), 87

[98] Gazette Newsdesk, “Legislation pledeged to prevent abuse of NDAs” (Law Gazette, 28th March 2024), <https://www.lawgazette.co.uk/news/legislation-pledged-to-prevent-abuse-of-ndas/5119223.article > accessed 15th April 2024

[99] N(95), 861

[100] N(7), 34

[101] Ibid

[102] Ibid, 12

[103] N(31)

[104] Matt Gingell, “Whistleblowing and the public interest test |Nick Singer| Bitesize UK Employment Law Video” (13th May 2021) <https://www.youtube.com/watch?v=hEjlfFAg8ws > accessed 10th February 2024 

[105] Morten Fibieger Byskov, “What makes Epistemic Injustice an “injustice”” (2020) 1 Journal of Social Philosophy 1

[106] Lourin v University of Oxford [2023] 8 WLUK 146

[107] Ibid, 13

[108] Ibid, 13

[109] Ibid, 17

[110] Katherine M Franke, “What’s wrong with Sexual Harassment?” (1997) 49 Stanford Law Review 691

[111] N(7),34

[112] Ibid

[113] Linda Martin Alcoff, “on judging epistemic credibility: is social identity relevant” (2001) engendering rationalities 73, 76

[114] L McDowell, “Capital Culture revisited: ex, testosterone and the city” (2010) 34 international journal of urban and regional research” 652

[115] M. Sandy Hershcovis, “See no Evil, Hear No Evil, Speak No Evil: Theorizing Network Silence Around Sexual Harassment” (2021) 106 Journal of Applied Psychology 1834, 1837

[116] Patricia Hill Collins, “intersectionality and Epistemic Injustice” (1st edn, Routledge, 2017), 32

[117] Lilia M. Cortina, “putting people down and pushing them out: sexual harassment in the workplace” (2021) 8 Annual reviwew of organisational psychology and organisational behaviour 285

[118] Federico Luzzi, “Testimonial injustice without credibility deficit (or excess)” (2016) 5 Thought: a journal of philosophy 203, 206

[119] Ibid

[120] N(25)

[121] ibid

[122] N(3)

[123] Ibid

[124] Alexis Martin Bushnell, “reframing the whistleblower in research: truth tellers as whistleblowers in changing cultural contexts” (2020) 14 Sociology Compass 1,2

[125] Annette Quayle, “whistleblowing and accounting for the public interest: a call for new directions” (2021) 34 accounting, auditing and accountability journal 1555, 1558

[126] R. W Connel, “Gender and Power: society, the person and sexual politics” (Stanford University Press, 1987, 1st edn), 45

[127] House of Commons Women and Equalities Committee, The use of non- disclosure agreements in discrimination cases (HC 2017-19 1720) para 81

[128] N(30), 1565

[129] Kirstie Dotson, “Tracking Epistemic Violence, Tracking Practices of Silencing” (2011) 26 Hypatia 236, 237

[130] N(1),10

[131] N(2)

[132] Babula v Waltham Forest College [2007] EWCA Civ 174

[133] Bowers, Lewis & Mitchell, “whistleblowing: the new law” (sweet & Maxwell London 1999), 19

[134] Eric R. Boot, “The feasibility of a public interest defence for whistleblowing” (2020) 39 law and philosophy 1

[135] Equality act 2010, s.147(3)(c)

[136] N(67)

[137] Vasundhara Prasad, “if anyone is listening, metoo: breaking the culture of silence around sexual abuse through regulating non- disclosure agreements and secret settlements” (2018) 59 Boston College Law Review 2507, 2549

[138] House of Commons Women and Equalities committee, The use of non- disclosure agreements in discrimination cases (HC- 2017-19-1720), 36

[139] Ibid

[140] Leigh Goodmark, “when is a battered woman not a battered woman? When she fights back” (2008) 20 Yale Journal of Law & Feminism 75, 85

[141] Jennifer Hornsby, “Feminism in philosophy” (2000, Cambridge university press, 1st edition), 127 

[142] “The Misuse of Non- Disclosure Agreements: call for evidence themes and summary of evidence” (Legal Services Board, Feb 2024) < https://legalservicesboard.org.uk/wp-content/uploads/2024/02/NDA-call-for-evidence-themes-and-summary-Feb-2024.pdf> accessed 13th April 2024

[143] ibid

[144] “take advantage of something” (Cambridge dictionary) <https://dictionary.cambridge.org/dictionary/english/take-advantage-of > accessed 13th March 2024

[145] “SRA Principles” (Solicitor Regulation Authority, 30th May 2018) https://www.sra.org.uk/solicitors/standards-regulations/principles/ accessed 15th March 2024

[146] Rae Langton, “Feminism in Philosophy” (Cambridge University Press, 2000, 1st edn), 127

[147] Sarah Brand, “Caution to clients: california’s mediation confidentiality statutes protect attorneys from legal malpractice claims arising out of mediation” (2014) 37 T Jefferson Law Review 369, 373

[148] Catherine MacKinnon, “Towards a Feminist Theory of the State2 (1989, 1st edn, Harvard University Press), 644

[149] Higher Education (Freedom of Speech) Act 2023

[150] Worker Protection (Amendment of Equality Act 2010) Act 2023

[151] Ibid, s.1

[152] Non- Disclosure Agreements Bill HC Bill 2022-23 (131)

[153] Anjil Raval, “CBI admits to using non- disclosure agreements to silence staff” (The Financial Times, London, 26th March 2024) < https://www.ft.com/content/ce27074a-7ee3-4eec-953b-89281f82f49f > accessed 10th April 2024

[154] N(5)

[155] “Written submission from a member of the public (NDA0099)” (Parliament Committee) <https://committees.parliament.uk/writtenevidence/103236/html/ > accessed 12th April 2024

[156] House of Commons Treasury Committee, “sexism in the city: HM Treasury, Prudential Regulation Authority and Financial Conduct Authority Responses to the Committee’s sixth report” HC 2023-24 764)

[157] RL Wagner, “Women’s Autonomy in Non- Disclosure Agreements” (2021) 82 Montana Law Review 409, 424

[158] Patricia McFadden, “Why women’s spaces are critical to feminist autonomy” (Vancouver Rape Relief & women’s shelter, 1995) <https://www.isiswomen.org/index.php?option=com_content&view=article&id=630:why-womens-spaces-are-critical-to-feminist-autonomy&catid=127:theme-mens-involvement-in-womens-empowerment# > accessed 1st May 2024

[159] N(91)

[160] Katherine Abrams, “From Autonomy to Agency: Feminist Perspectives on self- direction” (1998) 40 Wm. & Mary L Rev 805, 807

[161] Jose Medina, “Varieties of Hermeneutical Injustice” (Routledge, 2017, 1st edn), 46

[162] Molly Mayer “Tackling sexual harassment in the workplace” (2020)

[163] “Making a Claim to an employment tribunal” (ACAS, 18th October 2018) <https://www.acas.org.uk/making-a-claim-to-an-employment-tribunal > accessed 4th April 2024

[164] https://www.fawcettsociety.org.uk/Handlers/Download.ashx?IDMF=8eabc7f1-07c0-4d7e-9206-de431524301e

[165] Emma Bell, “Dangerous Knowledge: the Political, Personal, and Epistemological Promise of Feminist Research in Management and Organisation studies” (2020) 22 LJMR 177,188

[166] Michael Pickering, “Stereotypes, Prejudice, and Discrimination” (2019) core concepts in sociology, 316

[167] Graeme Lockwood, “A legal analysis of sexual harassment employment tribunal cases 1995- 2005” (2008) 50 international journal of law and management 316, 317

[168] Ibid

[169] “A Guide to Discrimination Law: Legal Aid” (Rights of Women, 2023) <https://www.rightsofwomen.org.uk/wp-content/uploads/2023/12/A-guide-to-discrimination-law-legal-aid-dec-2021.pdf > accessed 16th April 2024

[170] Sarah Moore, “Legal Aid in Crisis” (2017, 1st edn, Policy Press), 87

[171] “Making a Claim to an employment tribunal” (ACAS, 18th October 2018) <https://www.acas.org.uk/making-a-claim-to-an-employment-tribunal > accessed 4th April 2024

[172] ibid

[173]N(165)

[174] Breanne Fahs, “The Urgent Need for Radical Feminsim Today” (2024) 49 the university of Chicago press 1, 7

[175] N(82), 19

[176] Denise Thompson, “Radical feminism today” (Sage Publications, 2001, 1st edn), 8

[177] Jennifer Freyd, “so you want to address sexual harassment and assault in your organisation? Training is not enough; education is necessary” (2019) 20 journal of trauma and dissociation 489, 490