McGuireWoods London office managing partner Daniel L. Peyton published articles on different topics on Oct. 31 in two respected UK news outlets that serve human resources professionals.
In his column for HR magazine, Peyton wrote that nondisclosure agreements — widely vilified in media coverage of the #MeToo movement as a means to silence victims of sexual misconduct — are not inherently wrong. While NDAs should never be forced on people to suppress reporting of wrongdoing, settlement agreements that include NDAs sometimes provide a way for parties to opt to settle an allegation, rather than be forced to litigate it in open court.
“The whole point of a settlement is that it is an alternative chosen by both parties to accept some benefit instead of allowing a court to determine the facts and legal consequences of the allegations made,” Peyton wrote. While the alleged victim forfeits the right to sue and discuss the alleged misconduct publicly, the alleged wrongdoers lose the right to answer contested allegations in the proper forum, he wrote. Also, he noted, the reporting of misconduct to police or regulators is protected by whistleblower statutes that render NDAs unenforceable.
In his article for Personnel Today, Peyton explored an employer’s liability if an employee fails to halt belligerent acts by one customer against another. The topic arose after a passenger aboard a recent Ryanair flight was filmed in a racist tirade against another passenger.
The video went viral on social media and was picked up by news outlets, subjecting the airline to blistering public criticism for failing to remove the abusive passenger. Under current UK law, Peyton wrote, “a company may be liable for failing to prevent or stop acts of harassment by a third party directed against its employees or its customers if this failure can itself be said to amount to harassment under the Equality Act.”