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.
- Requiring employers to investigate all discrimination and harassment complaints regardless of whether a settlement is reached.
- Requiring employers to cover the cost of employees obtaining legal advice and the negotiation of a proposed settlement agreement, regardless of whether it is signed.
- Requiring employers to report annually on the number of discrimination and harassment complaints received and their outcome as well as the number of settlement agreements they have agreed.
- Extending the time limit for bringing a discrimination claim from three to six months.
- Significantly increasing the 'Vento bands' (tiered values for compensation for injury to feelings) to recognise the non-financial impact of discrimination.
- Use of standard, plain English confidentiality clauses in settlement agreements.
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
- increasing scrutiny of the way in which such clauses are implemented;
- the likelihood of greater regulation of discrimination and harassment claims, particularly in relation to the way in which such claims are settled.