The #MeToo movement that grabbed the headlines in 2018 shows no signs of slowing down, with campaigners now branching out beyond sexual harassment to tackle other forms of unlawful behaviour.
The House of Commons Women and Equalities Committee ('the Committee') has now published its report on the use of non-disclosure agreements (NDAs) in discrimination cases. This followed on from the Committee's 2018 report on sexual harassment in the workplace which raised the question of whether legally compliant NDAs might be deterring complainants from raising concerns about sexual harassment – an issue on which the government has since pledged to consult.
The Committee's most recent report, published on 11 June 2019, considers the situation for individuals who have suffered from other forms of unlawful discrimination and harassment.
Discrimination and harassment in the workplace is unlawful under the Equality Act 2010. However, the report suggests that allegations of unlawful discrimination are often not investigated properly - or at all - by employers; instead being routinely 'covered up' by NDAs. The imbalance of power between employer and employee, and the uncertainty of pursuing a claim in the Employment Tribunal, can mean that employees feel they have little choice but to reach a settlement that they feel prohibits them from speaking out. It is in this context – confidentiality provisions in settlement agreements – that the question of NDAs in the HR field most commonly arises.
The Committee believes that the misuse of NDAs by some employers is only one part of a wider problem, with legislative, regulatory and even judicial measures currently failing to protect employees from discrimination and abuse of power.
A number of the recommendations aimed at dealing with these and other problems linked to preventing harassment and discrimination at work are set out below.
While the proposals above are only a snapshot of the recommendations made, it is clear that the government is under pressure to do more to prevent harassment and discrimination in the workplace and lift the lid on unscrupulous employers who misuse NDAs.
While there are circumstances in which NDAs are perfectly appropriate – especially in the context of a settlement agreement where confidentiality may be sought by both sides – employers should be mindful of
We cover the wider employment law ramifications of the #MeToo movement, and other current employment law themes, in more detail on our most recent Employment Law Focus podcast: essential listening for HR professionals and in-house lawyers.
Contributor: Rob Tubman
This publication is intended for general guidance and represents our understanding of the relevant law and practice as at June 2019. Specific advice should be sought for specific cases. For more information see our terms and conditions.