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Confidentiality clauses used to settle claims of sexual harassment
Advice for Victorian lawyers who draft, negotiate and advise on confidentiality

What are confidentiality clauses?

A confidentiality clause is a provision within a settlement agreement under which parties agree that certain information will be kept confidential as part of the settlement. Confidentiality clauses are also commonly referred to as non-disclosure agreements (NDAs).

Confidentiality clauses used to settle claims of sexual harassment

In a settlement agreement resolving an allegation of workplace sexual harassment, a confidentiality clause may stipulate that parties keep certain matters confidential, such as the quantum of any payment or other details relating to the allegation itself and settlement process.

Confidentiality clauses can be beneficial in providing a complainant with privacy, finality and greater bargaining power when settling their complaint. However, they have also been used to cover up unlawful conduct and to protect the reputations of alleged sexual harassers and their organisations. As such, they can facilitate repeat offending and inhibit oversight by executives and boards, who may be unaware that complaints have settled confidentially. In this way, confidentiality clauses can contribute to under-reporting and reinforce the systemic nature of sexual harassment, hiding both its prevalence and the steps taken to address it.    

Advice for Victorian lawyers who draft, negotiate and advise on confidentiality

Lawyers play a key role in drafting, negotiating and advising on confidentiality clauses to resolve workplace sexual harassment complaints.  They should keep their professional and ethical obligations front of mind when doing so.

The Australian Human Rights Commission (AHRC) has produced helpful information about the use of confidentiality clauses to resolve workplace sexual harassment complaints. We strongly encourage Victorian lawyers to refer to this information when working on these matters.

See the following expandable sections for more detailed information.

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How we assess if your bill is fair and reasonable

You can usually talk to your lawyer first about any concerns you have about your bill. They can explain their fees and charges in more detail, or they may offer you a remedy.

If you are not satisfied with your lawyer’s response after speaking to them, you can contact us for assistance.

We will let you know if we can help you or explain other options that may be available to you. This could include working with you and your lawyer to agree an outcome.

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When dealing with a complaint about a lawyer’s bill, we sometimes need to look at the lawyer’s work and costs in more detail.

Watch the video below to see how we decide if your lawyer’s bill is fair and reasonable:
 

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