Proposed changes to NDA rules ‘not enough to end workplace harassment’

Tackling the issue should be ‘mandatory’ for employers, experts say

 Workers in the UK will be offered increased protection from unethical non-disclosure agreements (NDAs) under a new set of government proposals, it has been announced, as experts called for a ‘mandatory’ duty on employers to prevent sexual harassment in the workplace. 

However, voices welcoming the proposals have been joined by those warning changes to the rules around NDAs will not be enough on their own to prevent harassment in the workplace.

Proposed changes to the law seek to prevent workers from being coerced or duped into signing gagging orders, after mounting evidence of their misuse by organisations.

The changes include a legal clarification that confidentiality clauses will not prevent individuals from speaking to the police regarding criminal behaviour, or prevent information from being disclosed during any criminal proceedings. 

Employers will also be required to provide an employee with a clear, written description of their rights before anything is signed regarding confidentiality clauses, within contracts of employment or settlement agreements. 

“From a legal perspective, there is currently little to prevent employers from including these types of clauses in settlement agreements,” Keely Rushmore, partner at SA Law, told People Management, describing the government announcement as a “welcome step in the right direction”. 

“Individuals will at least have a clear understanding of their position and to whom they can speak about the allegations in the future. Perpetrators will no longer be able to rest easy in the knowledge that their criminal actions cannot be reported to the authorities," she said.

The proposed changes will also ensure workers who consent to a settlement agreement are entitled to independent advice, in an effort to prevent employees from being ‘duped’ into signing gagging clauses they were not fully aware of. 

Despite some businesses using NDAs for legitimate reasons, recent investigations from the Women and Equalities Committee (WEC) have fuelled concerns that many are imposing gagging orders to silence whistleblowers and conceal cultures of discrimination and harassment. Multiple cases have been tied to the #MeToo movement, such as evidence given by Harvey Weinstein’s assistant Zelda Perkins, and the row over Topshop CEO Philip Green – who was found to have deployed at least five NDAs with members of staff who accused him of sexual and racial harassment.

Ben Willmott, head of policy at the CIPD, welcomed the proposals. "The CIPD supports the plans to make it clear that employees can always report a matter to the police without falling foul of a confidentiality clause in relation to workplace harassment or discrimination,” he said.

Willmott, who will be giving evidence to the WEC’s investigation into the use of NDAs on Wednesday, added there may also be a case for allowing employees to turn to bodies such as the Equality and Human Rights Commission (EHRC) to report concerns over NDAs, and for advice on whether incidents that breach the Equality Act but are not a criminal offence are covered by whistleblowing rules.

He said the CIPD also backed the idea of greater standardisation of confidentiality clauses, and the proposal that independent legal advice should specifically cover the provisions of these clauses.

Business minister Kelly Tolhurst said the widespread misuse of NDAs as a silencing tactic was “completely unacceptable”. “Our new proposals will help to tackle this problem by making it clear in law that victims cannot be prevented from speaking to the police or reporting a crime and clarifying their rights,” she said. 

“They will also help boost understanding of workplace rights and legal responsibilities, all part of plans to create a fairer workplace through our modern industrial strategy.”

However, while Rebecca Hilsenrath, EHRC chief executive, welcomed the ‘empowering’ progress around NDAs, she warned the measures would not be enough to drive sustained cultural change. “Regulating NDAs alone will not prevent workplace sexual harassment,” she said. 

“To fundamentally change workplace cultures and ensure everyone enjoys a working environment that allows them to reach their full potential, employers must take steps to prevent sexual harassment from happening in the first place. We believe that such a duty should be made mandatory for all employers.” 

The consultation on the proposed measures will run until 29 April 2019. 

The new proposals came as Ray Kelvin, CEO of Ted Baker, resigned following allegations of misconduct over “forced hugging” – an issue which came to light last October, when staff working at the retailer brought an online petition claiming they felt there was “no official way to address the issue of harassment in their workplace”.