Hiding harassment and discrimination
6 December 2019 at 09:09 AM The #MeToo movement has exposed the scale of the sexual harassment problem in all types of workplace and has highlighted the fact that many of those who have experienced it felt unable to speak up. Can staff speak up in your organisation? The Equality and Human Rights Commission (EHRC) have found that NDAs (nondisclosure agreements) have become common place and have been used to cover up instances of harassment or discrimination. Would new guidance help provide clarity on the law?
Research by the EHRC has found that staff may not feel able to speak up about discrimination because:
- they believe that their complaint will not be taken seriously
- they are fearful of being victimised,
- they fear that the alleged perpetrator will be protected
- there is a confusion or a lack of appropriate reporting procedures.
- it is also clear that confidentiality agreements are part of the problem.
The EHRC recognises that confidentiality agreements (also known as nondisclosure agreements or NDAs) have legitimate uses. For example, they may be used to protect confidential information or used in cases where a worker wants to make sure the details of the discrimination to which they have been subjected will not be discussed.
However, evidence suggests that in some circumstances confidentiality agreements have been used to cover up instances of harassment or discrimination. There is also evidence, including from the Equality and Human Right’s Commission’s own enforcement work, to suggest that the inclusion of confidentiality agreements in terms and conditions or settlement agreements has become commonplace. This can prevent workers from speaking about their experiences, create confusion as to what they can and cannot say, and make them fearful about what will happen if they do speak up.
The EHRC have published new guidance which offers both employers and employees clarity on the law around confidentiality agreements and when and how they can be used, as well as explaining when they would be unlawful.
You can download the guide here
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