How Corporate Britain Hides Thousands of Sex Discrimination Cases

Every year hundreds of workers who file sex-discrimination grievances in U.K. courts settle their cases in return for money—and silence.

Now, you can see who’s been sued, and how many of those suits vanished before any alleged bad behavior could be publicly exposed in court. A relatively new and little-known public database analyzed by Bloomberg shows that 2,195 sex-discrimination suits were dropped before court rulings in the past 2 1/2 years, out of 3,585 suits in total.

Employers from hairdressers to police departments to multinational corporations have been sued for sex discrimination in cases that were later withdrawn. In finance, at least 71 complainants brought lawsuits that later vanished into the ether, out of 94 suits altogether. Units of major banks such as Barclays Plc, HSBC Holdings Plc, JPMorgan Chase & Co. and Banco Santander SA are on the list.

Banks with most cases

Sexual discrimination lawsuits,

since 2017

Withdrawn in likely settlements

12

BARCLAYS

9

THE ROYAL BANK OF SCOTLAND

5

JP MORGAN CHASE

LLOYDS BANK

5

HSBC

5

SANTANDER

5

Source: Bloomberg reporting, HM Courts & Tribunals Service

Barclays appears 12 times. Eleven cases against it were pulled, and the 12th individual lost her case. Royal Bank of Scotland Group Plc, still part-owned by the British taxpayer, saw eight cases pulled, and JPMorgan saw five. Santander had three. JP Morgan, HSBC, Lloyds, RBS and Barclays declined to comment. A Santander spokesman said it had “zero tolerance” of discrimination and is committed to creating an inclusive culture.

These cases are a fraction of the more than 7,000 sex-discrimination suits that have been withdrawn from U.K. employment tribunals since 2013 using a mechanism that usually indicates a settlement. Those cases are taken from a different and overlapping database, from the Ministry of Justice, which counts withdrawn cases dating back over a longer period but without including the parties’ names. Attorneys and researchers say such settlement deals often involve a payment, and overwhelmingly include confidentiality clauses and non-disclosure agreements.

In addition, many disputes end in payouts and gag orders before they even reach court, and there’s no public register of those. Only a “tiny minority” of cases end up in the tribunal, a committee of lawmakers said in a report in June.

Withdrawn

Sexual discrimination lawsuits

598 in 2017

845 in 2018

752 in 2019 (ending Aug. 14)

Source: Bloomberg reporting, HM Courts & Tribunals Service

It said the government should consider forcing companies to disclose how many discrimination and harassment complaints they receive and how many they settle. The government rejected the idea.

“These thousands are the tip of the iceberg,” said Jess Phillips, a member of the committee. “It’s brilliant to see that you can map where cases are in the public domain, going into the shadows. Surely this tip shows we really have to find the rest of it.”

Huge numbers of people face harassment and discrimination but decide “there’s nothing they can do,” said Lizzie Barmes, professor of labor law at Queen Mary University of London. On top of that, many companies faced with a “genuine claim” that poses a “reputational risk” will try to settle it before would-be plaintiffs file any court papers, said Florence Brocklesby, a principal at Bellevue Law who works on employment cases.

The fact that a court case was filed or pulled tells nothing about its rights and wrongs, and the dataset may include spurious cases or those dropped without a deal by workers worn down by the process or convinced they’d lose. Sometimes, details of allegations can become public even if there’s a settlement, if judges publish pre-trial rulings. The data likely includes some small scale disputes that were resolved with relative ease, but it’s clear that dark tales lurk behind many settlements.

Search the lawsuits →

Eight women in banking and finance who sued their employers then dropped their claims, spoke to Bloomberg News on condition of anonymity, saying they feared losing their livelihoods for going public. All but one said they received payments and signed NDAs. Their allegations cover everything from out-and-out sexual assault at work to offensive comments to being sidelined after having a baby to raising the alarm about lower pay and fewer promotion opportunities for women. Yet their stories have never been told in public.

In the months and years after abandoning their lawsuits, several of the women said, they realized that their ordeal wasn’t over after all. Many are struggling to move on in their careers, and to come to terms with the reality of keeping a secret forever. Some live with the knowledge that their cases didn’t change behavior at the companies they sued. One, who says the stress of the case caused some of her hair to fall out, said she still has a bald patch.

Another result of secret settlements: Victims of harassment and discrimination don’t learn about each other’s cases or band together. One of the women compared the situation to a game of Whack-a-Mole. Every time a discrimination claim pops up, it’s bashed down with a hammer, so no one sees how many there are. The alleged perpetrators can walk away. If there are patterns of wrongdoing, or links between cases, they’re hidden—and the system never comes under pressure to change.

“Since the system can only offer money, one could say I won,” said one of the plaintiffs, who dropped her case against a large bank. “What we lose is the chance to give courage and inspiration to other women.”

Settling, itself, is not the problem. That’s just an agreement not to sue—potentially a good thing for everyone, since court battles are often stressful and expensive. The problem is that secrecy clauses get added on, said Zelda Perkins, a former assistant in the London office of Harvey Weinstein. She broke her NDA two years ago to speak out about alleged sexual harassment by the Hollywood producer and who now wants a legal ban on confidentiality clauses in discrimination cases.

I’m not saying you can’t settle,” but “you cannot gag people

“I’m not saying you can’t settle,” but “you cannot gag people,” Perkins said. “If somebody is being abusive or discriminatory at work they don’t have the right to be protected.”

This data is the only known compilation of its kind. Across much of Europe, the kind of tribunal data that forms the basis for Bloomberg’s analysis is simply not available. In the U.S., there’s no equivalent. Although the Equal Employment Opportunity Commission publishes aggregate data on sex-discrimination and harassment cases, it doesn’t include the employers’ names.

Attorneys can use an arsenal of tools to push plaintiffs to agree to keep quiet rather than have their day in court. “Lots of very dark things” happen when you sue your employer, an anonymous plaintiff—who ended up signing an NDA—told the committee of U.K. lawmakers as they investigated the use of the gagging clauses in discrimination cases earlier this year.

One such move is to try to make the plaintiff pay the employer’s costs, even though the tribunal’s rules allow that only when a judge rules the other side has been unreasonable. Once, a company’s lawyers applied for 35,000 pounds ($42,670) in costs midway through the process, a move designed to “derail” the other side and pressure them to settle, said Suzanne McKie, the founder of Farore Law, which specializes in harassment and discrimination cases.

Suing a company for sexual

discrimination

Step one is participating in a conciliation service, where you and the other party attempt to reconcile.

Talks go

nowhere

Talks lead to a deal.

You agree not to sue

Get ready to fight.

File your tribunal claim and wait for the company’s legal filings in response, which could paint you in a negative light.

You can

give up at

any time

Settle

Fight

on

Pretrial can take months. The company may make vague threats about the trial ending your career, or try to make you pay their legal costs.

Settle

Fight

on

Case goes to trial. Prepare for your story to become public. The stress is building up.

Fight

on

Settle

Trials can also take months, with legal costs piling up

Fight

on

Settle

Wait for

a ruling

You

win

You

lose

You’re exhausted, maybe broke, and need to get back to your career, which isn’t easy after you’ve sued

You probably

sign an NDA

Suing a company for sexual discrimination

Step one is participating in a conciliation

service, where you and the other party

attempt to reconcile.

You’re exhausted, maybe broke, and need to get back to your career, which isn’t easy after you’ve sued

You can give up at any time

Talks go

nowhere

Get ready to fight.

File your tribunal claim and wait for the company’s legal filings in response, which could paint you in a negative light.

You

win

You

lose

Talks lead to a deal. You agree not to sue

Wait for a ruling

Settle

Fight

on

Settle

You probably sign an

Trials can also take months, with legal costs piling up

NDA

Fight

on

Settle

Settle

Pretrial can take months. The company may make vague threats about the trial ending your career, or try to make you pay their legal costs.

Fight

on

Settle

Case goes to trial. Prepare for your story to become public. The stress is building up.

Fight

on

Suing a company for sexual discrimination

Step one is participating in a conciliation

service, where you and the other party

attempt to reconcile.

You’re exhausted, maybe broke, and need to get back to your career, which isn’t easy after you’ve sued

You can give up at any time

Talks go

nowhere

Get ready to fight.

File your tribunal claim and wait for the company’s legal filings in response, which could paint you in a negative light.

You win

You lose

Talks lead to a deal. You agree not to sue

Wait for a ruling

Settle

Fight

on

Settle

You probably sign an

Trials can also take months, with legal costs piling up

NDA

Fight

on

Settle

Settle

Fight

on

Pretrial can take months. The company may make vague threats about the trial ending your career, or try to make you pay their legal costs.

Settle

Case goes to trial. Prepare for your story to become public. The stress is building up.

Fight

on

Suing a company for sexual discrimination

Step one is participating in a conciliation service, where you and the other party attempt to reconcile.

You’re exhausted, maybe broke, and need to get back to your career, which isn’t easy after you’ve sued

Talks go

nowhere

You can give up at any time

Get ready to fight.

File your tribunal claim and wait for the company’s legal filings in response, which could paint you in a negative light.

Talks lead to a deal. You agree not to sue.

You win

You lose

Wait for a ruling

Settle

Fight

on

Settle

You probably sign an

Trials can also take months, with legal costs piling up

NDA

Fight

on

Settle

Settle

Fight

on

Pretrial can take months. The company may make vague threats about the trial ending your career, or try to make you pay their legal costs.

Settle

Case goes to trial. Prepare for your story to become public. The stress is building up.

Fight

on

Intimidation is another tactic. Nathalie Abildgaard, an investment analyst in her 20s, sued her employer, IFM Investors, saying in court filings that her senior colleague, Frederic Michel-Verdier, had texted her his hotel room number with a message saying “come” and offered to teach her “a lot about sex.” In evidence to a lawmakers’ committee she said a lawyer for the company, from the law firm Herbert Smith Freehills, warned her attorney that she’d be “toast” if she testified, and would never work in the industry again. IFM, Michel-Verdier and the law firm declined to comment. In evidence to the tribunal, Michel-Verdier denied that he made any sexual advances towards Abildgaard. He said it may have been “irresponsible and naïve” to send his hotel room number to a female colleague.

Nathalie Abildgaard on Jan. 22, 2019.
Nathalie Abildgaard on Jan. 22, 2019.
Photographer: Shutterstock

“The process of complaining about mistreatment is often as stressful and upsetting as the initial behavior,” said Brocklesby, from Bellevue Law. “Many women end up signed off work with anxiety related illnesses.”

For the women who spoke to Bloomberg, this sounds familiar. “I was standing at the top of the Canary Wharf escalators in tears thinking, this is not me” after an internal meeting that made it clear the case was going to drag on and potentially end up in court, one said. “For the employee, everything’s stacked against you.”

“They just want you to go away because you’re like an annoying fly,” said another, who complained about inappropriate comments from a colleague. “It’s horrific. You’re made out to be a liar and you end up doubting yourself,” while the company is “badgering you, saying you’re not going to get anywhere so we’re going to sue you for costs.”

Another of the women said that, after filing an employment suit, colleagues felt differently about her. “People’s perception of you is, you’re trouble,” she said. “You’re tarnished.”

The effect can be profound, said McKie. When people believe their employer has treated them badly, they revisit their entire career, asking themselves “‘Why have you sacrificed having children, why have you not put as much time into your marriage?"’ she said. “Your thoughts go to all the effort you put in, and for what?”

We were struck by the fear, anger and raw emotion that witnesses expressed and still felt about their experience years—even decades—after signing an NDA

It’s easy to see why settlements with NDAs seem the best option in the heat of battle. In the years that follow, it’s a different story. “We were struck by the fear, anger and raw emotion that witnesses expressed and still felt about their experience years—even decades—after signing an NDA,” the committee of lawmakers said in their report.

Zelda Perkins speaks during the Women and Equalities Committee on March 28, 2018.
Zelda Perkins speaks during a Women and Equalities Committee hearing on March 28, 2018.
Source: Parliament TV

When you make a complaint, “you’re offered really s*** Option 1, the tribunal, or really s*** Option 2, a settlement,” said Perkins, the former Weinstein assistant. “Really s*** Option 2 appears to be the better one because you might get more money and it will be over quickly and it won’t be public. But what I’ve been so shocked to discover is, these agreements destroy a lot of people’s lives.”

Perkins said that when she signed Weinstein’s NDA more than two decades ago, when she was 24, she “really didn’t think about the power of what I was signing.” She wasn’t even allowed to keep a copy of the agreement. The terms were so restrictive, she couldn’t tell the U.K. tax authority where her settlement money came from.

Zelda Perkins’s NDA via Parliament’s Women and Equalities Committee

Her NDA meant she couldn’t “speak to my family, my friends, a doctor, a therapist,” or even talk to other attorneys about whether the deal was legal and could be enforced, she said. “You can’t own your own trauma.” She broke the agreement in 2017, saying she wanted to show how the rich and powerful use the legal process to silence victims of sexual harassment. Several attorneys have since said Perkins’s NDA is unusually strict, and the British government said in July that it will stop NDAs being used to keep people from talking to the police, doctors, lawyers and social workers.

On top of that, a person who signs an agreement must bear the burden of keeping a secret forever. “If in five years’ time I accidentally say something to someone, or someone finds out through some other means and my former employer decides that it was my fault, they can come after me and get all that money back, or at least try to get it back,” the anonymous NDA-holder told the lawmakers’ committee. “It is a weight that hangs over you for the rest of your life.”

Corporations and attorneys argue that settlements with confidentiality agreements can be a good outcome for everyone involved, because they bring closure and allow the alleged victim to move on with her or his life, safe in the knowledge that their experience won’t become public. Several employment lawyers told Bloomberg that alleged victims often want confidentiality themselves.

Portrait of Juliet Carp
Juliet Carp, U.K.’s Employment Lawyers Association

Juliet Carp, an attorney and the chair of the U.K.’s Employment Lawyers Association, said alleged victims’ reasons for wanting confidentiality include the fear of being bad-mouthed, especially to potential new employers, and the desire to draw a line under what happened. And companies are unlikely to pay out when that could be seen, without the gag order, as an admission of wrongdoing. Some employers settle even if they think they’ve done nothing wrong, because that’s cheaper than a trial, she said.

Settling with secrecy brings closure, avoids stressful and expensive trials and lets everyone move on, Carp said. “If you can’t have confidentiality, far fewer claims will settle,” and “a lot of people who’ve been badly treated won’t make claims at all.”

But “whether it works best for the public as a whole is another issue,” she said. There’s a “valid argument” that if “everyone agrees to say nothing, how does that help the next person?”

Bloomberg’s analysis of the court judgments is backed by the separate Ministry of Justice data, which show that the number of sex-discrimination complaints at the employment tribunal rose 69% in the year to March, hitting 9,336. All types of cases, by contrast, went up by 27%. Last year only 3% of sex-discrimination cases made it to a final ruling, of which plaintiffs won about two thirds of the time, the data show.

Ninety-one percent of employment tribunal settlements—in cases of all types, not just sex discrimination—involve a payment, according to a government report published in 2014, the most recent of its type available.

There’s increasing evidence to suggest “confidentiality clauses are ubiquitous in settlement agreements”

There’s increasing evidence to suggest “confidentiality clauses are ubiquitous in settlement agreements,” outside certain areas such as the civil service, which has introduced reforms to limit their use, said labor-law professor Barmes.

The scale of secretive settlement deals is just one of the reasons the worldwide #MeToo movement hasn’t led to much of a reckoning in the U.K. In the U.S., hundreds of people, the vast majority of them men, have been fired, resigned or faced other professional consequences since allegations of serial predation by Weinstein were first reported in 2017.

Tip of the iceberg

49,543 sexual discrimination

cases closed since 2013

4.1%

Ended in a court

ruling, and only

1.4% were successful

95.9%

Were dropped

before judgement

Source: U.K. Ministry of Justice

In Britain, libel and privacy laws are tougher and courts frequently issue injunctions that limit press reporting of allegations of extramarital affairs, sexual assault and harassment. The Times reported in July that one of the British establishment’s richest and most powerful figures had won secrecy orders that stopped it from naming him as the target of allegations of serious sexual harassment and assault.

Separately, Philip Green, the billionaire owner of the Topshop clothing chain, won an interim injunction last year that prevented the Telegraph newspaper from publishing allegations that he’d used legal agreements and payments to hide accusations of sexual harassment, racist abuse and bullying. His name only became public because Peter Hain, a member of the House of Lords, revealed it under parliamentary privilege, saying he felt it was his “duty” to do so. Green denied the allegations.

Even where the British courts allow for transparency, the powerful can hide behind court orders issued elsewhere in Europe. When Jagruti Rajput, a senior compliance officer at Commerzbank, won a sex- and maternity-discrimination case in a London court last year, judges published a decision that criticized a manager’s conduct. The manager won a privacy injunction from a German court that forced Bloomberg News and the Financial Times to delete his name from reports of the case. Bloomberg is currently appealing.

Meanwhile, Rajput’s victory was partly snatched away in July when an appeals judge granted the bank a fresh hearing of the sex discrimination portion of her case in front of a new tribunal. Though her maternity discrimination claim stands, Rajput, who still works for the bank, is effectively back at square one.

And, as on Wall Street, where—as Bloomberg reported last year—cultural and financial forces have staved off the Weinstein effect, many women in the U.K. are stopped from even raising complaints in the first place.

A recent Bloomberg Businessweek investigation into sexual harassment in the Lloyd’s of London insurance market found that the human resources departments in many city firms appeared complicit in silencing alleged victims of abuse.

Several of the women Bloomberg spoke to said that when they reported their harassers to HR they were advised their careers would likely suffer if they made a formal complaint, because they would become known as being difficult.

I’ve represented people who won their cases and came out of it feeling like they’ve lost, the experience has been so bruising

Once a dispute is underway, pretty much the only way to avoid a gag order is to go through with a trial. But that’s expensive and time-consuming—and sometimes traumatic. “I’ve represented people who won their cases and came out of it feeling like they’ve lost, the experience has been so bruising,” Karon Monaghan, a trial attorney who specializes in equality and human rights cases, said during a university panel discussion in London this year.

In one recent suit a junior lawyer, who can only be referred to as “A” because of reporting restrictions, told a tribunal that a colleague in his 50s had invited her to his house and said she could swim naked in his pool. He also allegedly encouraged her to eat a hash brownie on a work trip to Amsterdam, told her that cocaine makes him ‘horny,’ touched her breast and tried to unzip her dress.

The man’s attorney said the woman was “obsessed” with him and wanted a relationship.  “You’re a malicious liar and this is a malicious lie,” because “with you there was no boundary any more,” the lawyer said as a reporter watched the proceedings.

The woman, who cried on the witness stand, lost her case. The tribunal found she was “reluctant to take responsibility for her own actions” and it was hard to know whether she was telling the truth because, on her own admission, she sometimes lied. Whatever its rights and wrongs, it shows going to trial isn’t easy.

Nathalie Abildgaard—the analyst told she’d be “toast” if she testified—fought on. She took the witness stand and eventually, after her trial was done but before judges reached a verdict, got a 270,000-pound settlement from IFM that, in a highly unusual move, didn’t include an NDA. She didn’t respond to requests for comment, but she did tell a committee of lawmakers in April that the process had been “emotionally and financially draining” and she’s set up a charity to help others in a similar situation.

“That girl, I applaud her,” said a female senior executive who sued a major bank for sex discrimination, and accepted payment and an NDA. “You would never get a lawyer at the beginning of the process who’d say that’s even possible.”