Rely on culture change, not NDAs, to end harassment, say experts

Parliamentary committee hears HR departments should play a bigger role in tackling root causes of discrimination

HR professionals should play a bigger role in tackling failings in organisational culture that allow harassment to occur in the workplace, rather than falling back on non-disclosure agreements (NDAs), a parliamentary inquiry into the topic heard yesterday.

Speaking at the first Women and equalities committee (WEC) inquiry into the use of NDAs at work, Emma Webster – joint CEO of Your Employment Settlement Service – said HR departments involved in multiple cases of harassment failed to “take good management actions against individual perpetrators or the organisational culture” which could enable further harassment. 

She argued the use of NDAs was not inherently a “problem” when it came to harassment in the workplace, but it was “the fact that organisations refuse to tackle bad behaviour”.

NDAs, also known as confidentiality clauses, constitute a legal obligation to privacy and compel those who agree to keep specified information confidential. They are often used in settlement agreements with departing employees to ensure confidential or commercially sensitive information is not shared. 

But their use in cases of harassment and discrimination has become increasingly controversial – highlighted in a campaign led by Zelda Perkins, former assistant to Harvey Weinstein. 

In July, the WEC’s report on sexual harassment in the workplace called on the government to crack down on the use of NDAs in such cases. The WEC subsequently launched an inquiry into the wider use of NDAs in cases of harassment and discrimination

Séamus Dooley, assistant general secretary of the National Union of Journalists, told yesterday’s inquiry he believed there was a particular role for those involved in HR to “shine a light” on workplace harassment. 

“My own view is that secrecy is the friend of inappropriate behaviour, and harassment occurs in the dark,” Dooley said. “And the only way that you can actually can stop it is by shining a light on it and doing that consistently.”

He called on leaders to change workplace practice so that harassment and discrimination “doesn’t become an issue” in their organisations. He added the presence of NDAs “may well help conceal a pattern” of inappropriate behaviour. 

But Webster said many of her clients requested confidentiality clauses because they “want to be able to move on”. She said that without NDAs, many women feel they will be “blacklisted” and “cast as a troublemaker” if they are the person “who has raised the fact their previous employer discriminated against them”. 

Joeli Brearley, founder of Pregnant Then Screwed, proposed NDAs be reported to a body which would monitor their use and the number of agreements individual businesses filed. 

She explained this would mean an employer would report use of NDAs to the body, which would have the jurisdiction to act and investigate if they felt the agreements were being used to “hide abhorrent behaviour”. 

“We would suggest when they go [and] investigate, they force that company to put into place policies, procedures and training to prevent it from ever happening again,” Brearley said. 

Her organisation, which documents the stories of women who encounter pregnancy discrimination, found the use of NDAs in such cases had a negative effect on the women involved. 

The research revealed more than nine in 10 (91 per cent) women who were forced out of their job because of pregnancy or maternity discrimination felt signing a [NDA] “was their only option”, while 70 per cent said this had a negative impact on their mental health.

Earlier this week, the government announced it wanted to introduce a new statutory code of practice to tackle sexual harassment in the workplace.

The committee welcomed this, as well as a commitment to raise awareness among employers and employees as a means of tackling sexual harassment. But it said the government needed to do more to show “it is taking these issues seriously”.

Maria Miller, MP and chair of the WEC, said the government had “missed the opportunity to place a greater onus on employers to protect workers from harassment”.

The deadline for responses and evidence in the NDAs inquiry has been extended until 31 January 2019.