4 February 2020

Non-disclosure agreements in discrimination and harassment cases

Over the past few years, high profile news stories, such as those concerning Harvey Weinstein, and the Presidents Club dinner, have brought the issue of discrimination and harassment in the workplace, as well as the role that non-disclosure agreements (NDAs) can play in settling such matters, into the spotlight. As a result, the Government has come under increasing pressure to take positive steps to protect victims of sexual harassment.

In June 2019, the Women and Equalities Select Committee (WESC) published a report on the use of NDAs in discrimination and harassment cases, which contained a number of recommendations. In November, the Government published its response, which set out a number of commitments (some of which had been published previously). These included:

  • legislation to clarify that NDAs must not include provisions that prevent or imply that an individual cannot disclose information to the police, regulated health and care professionals and/or legal professionals;
  • to expedite legislation to allow employment tribunals to impose tougher sanctions where an employer has been found to repeatedly breach employment rights;
  • to consider what potential safeguards might be appropriate in cases where judgments are published online;
  • legislation to improve independent legal advice available to individuals signing NDAs; and
  • to consider whether employers should be obliged to investigate all discrimination and harassment complaints (even if the matter has reached settlement).

However, in light of the recent general election, it is unclear how quickly the above proposals will be introduced.

Notably, the Government has decided not to implement some of the WESC's more radical proposals. In particular:

  • it will not include friends, family or other victims of harassment as someone that individuals who are subject to NDAs can disclose confidential information to, as these individuals are not subject to confidentiality requirements and could not be held accountable if they disclosed the information further;
  • it will not prescribe standard wording to be used in NDAs and will instead produce guidance for solicitors and legal professionals; and
  • it will not be a criminal offence to propose a confidentiality clause designed or intended to prevent or limit the making of a protected disclosure or disclosure of a criminal offence.

The Equality and Human Rights Commission recently published technical guidance for employers concerning sexual harassment and harassment at work, including best practice for effective prevention and response. This is more detailed than the guidance that was available previously and should prove useful to employers. However, the question of how to prevent discrimination and harassment in the workplace is a complex one and it seems inevitable that the Government will take further action to address this issue going forward. As the expectations and duties being placed on employers continue to increase, it is more important than ever that they keep up to date with the latest developments in this area and continue to review their internal processes to ensure that they are compliant; for example, employers could:

  • consider whether an NDA is required and/or appropriate on a case by case basis;
  • review the wording of their standard NDA to ensure that this does not breach current guidelines/best practice;
  • investigate every sexual harassment claim (even if it has been settled); and
  • introduce an anti-harassment policy or review their existing one to ensure this is fit for purpose.

If you would like further guidance or advice in relation to this area, please contact Rosie Moore or Joe Beeston in our Employment team for assistance.

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