‘Gagging’ clauses should be banned in sexual harassment cases, says EHRC

27 Mar 2018 By Dawn Lewis

Human rights body outlines ‘truly shocking’ evidence of workplace misconduct, and calls for legal duty on employers to prevent wrongdoing 

Employers should be legally prevented from asking employees to sign confidentiality or ‘gagging’ clauses in sexual harassment cases, a leading human rights organisation has suggested – one of several recommendations designed to better protect individuals found to have suffered sexual abuse at work. 

Findings from the Equality and Human Rights Commission’s (EHRC) research – Turning the tables: ending sexual harassment at work – was deemed “truly shocking” by Rebecca Hilsenrath, EHRC chief executive, who said that “corrosive cultures have silenced individuals and sexual harassment has been normalised”.

Key to the EHRC’s recommendations is to introduce legislation that would make any future confidentiality clauses – which stop the employee from disclosing the agreements or the events they relate to – in non-disclosure agreements void, and to investigate how their ability to silence past instances of sexual harassment could be removed. 

In future, said the report, such clauses should only be used at the employee’s request – aside from in exceptional circumstances.

It has become common in many industries when reaching a financial arrangement with an employee who may have made allegations of sexual harassment against the employer, and who can bring a legal claim, to ask them to enter into a settlement agreement, said Hannah King, employment lawyer at B P Collins.

“This [agreement] means that the employee cannot then pursue a tribunal claim against the company relating to those matters. It is common as part of those terms of the settlement agreement to include a confidentiality clause – and sometimes a ‘non-bad mouthing’ clause,” said King. 

The use of such clauses has long been viewed with suspicion in many quarters, and they have been blamed for allowing cultures of harassment to flourish and individuals accused of wrongdoing to effectively go unpunished. 

“Gagging the victims of sexual harassment is simply wrong,” said Denise Keating, chief executive of the Employers Network for Equality & Inclusion. “Employers that use non-disclosure agreements are adding additional stress to people who have been put through damaging experiences. 

“The EHRC has found that only one in four victims of sexual harassment saw any action taken by their employers. With senior colleagues the most common perpetrators of sexual harassment, it’s clear that power is a major factor in those committing these acts.”

King said that banning such clauses may well have the desired effect on increasing transparency inside organisations. 

“By not allowing companies to ‘gag’ their current or former employees about harassment, this could encourage employees to come forward and might actually lead to employers being able to identify issues earlier on that need to be addressed before the situation deteriorates and becomes unsalvageable,” she said.

But other employment lawyers urged caution, and said confidentiality clauses sometimes had a valid use in ensuring grievances were handled sensitively and efficiently.  

“One of the main reasons that employers will be agreeable to settle claims in this way is to ensure confidentiality, especially when anything such as sexual misconduct could bring the organisation into disrepute,” said Arwen Makin, senior solicitor at ESP Law. 

“It is important to note that this is the case even where the employer has done everything correctly – addressed the issues when they were aware of them, perhaps even dismissed the perpetrator. 

“It isn’t simply a case of ‘covering up’ wrongdoing without addressing it, although sometimes of course it may be.” 

Other recommendations put forward by the EHRC include placing a greater responsibility on employers to publish their sexual harassment policies, and for the government to introduce a legal duty on employers to take effective steps to prevent harassment occurring in the workplace.

It recommended a new mandatory duty for employers and a statutory code of practice to “require all employers to take effective steps to prevent and respond to sexual harassment”, it stated.

“These measures will provide employers with clear guidance on what is required of them and ensure that there are consequences for failure to follow that guidance.” 

It also recommended that Acas “develop targeted sexual harassment training for managers, staff and workplace sexual harassment ‘champions’ to support employers in achieving change”.

It suggested that the government develop an online tool to make it easier to report sexual harassment, and that all employers publish their sexual harassment policy on their website.

To prevent victimisation, it called for a mandatory duty for employers to take reasonable steps to protect workers from victimisation, and a statutory code of practice to explain the steps employers should take to ensure nobody is victimised. 

It also strongly urged that ‘interim relief’ be available “so that those dismissed by their employers for making a complaint can seek continuation of their employment and reduce their financial losses”.

The EHRC’s research shares evidence gathered from around 1,000 individuals and employers between December 2017 and February 2018.

These recommendations have been welcomed, although there were concerns that they should go further. Chloé  Chambraud, gender equality director at Business in the Community, argued that having a policy in place and publishing it wasn’t enough to encourage reporting.

“We know that 96 per cent of organisations have bullying and harassment policies in place, but four in five women do not report it to the employers,” she said. “Employers need to have a range of formal and informal reporting mechanisms in place and to nurture a supportive culture to ensure that all complaints are handled fairly and consistently.” 

Employers also need to take into account other protected characteristics such as ethnicity, disability and sexual orientation, although many cases of sexual harassment in the workplace do not occur between colleagues but involve clients and other contacts at work. 

“A more effective protection in these cases might be to reinstate the rules protecting employees from acts of harassment by third parties,” said Paula Cole, partner at TLT. “Any new legislation should bear all of these circumstances in mind, and come up with a workable solution for everyone involved.”

The Equality Act 2010 defines sexual harassment as unwanted conduct of a sexual nature, which is intended to, or has the effect of, violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them. 

Under the Act, employers have a duty to protect their workers and will be legally liable for sexual harassment in the workplace if they have not taken reasonable steps to prevent it. However, the EHRC’s research suggested that the lack of minimum requirements is detrimentally affecting how employers manage this type of harassment.

“There is a lack of consistent, effective action being taken by employers, and people’s careers and mental and physical health have been damaged as a result,” said Hilsenrath. 

The EHRC recommendations follow a one-off parliamentary panel evidence session by the women and equalities committee, where suggestions were made to strengthen the existing law on sexual harassment to protect workers. 

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