Written by Liz Bradley and

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The Women and Equalities Select Committee (WESC) have published a report with recommendations to Government on the use of non-disclosure agreements (NDAs) in discrimination cases. The proposals are the result of an inquiry launched in November 2018 after concerns were highlighted by the earlier work of the WESC on sexual harassment in the workplace.

The Committee condemned the routine use of confidentiality and non-disparagement provisions in settlement agreements, especially in circumstances where the clauses are used to avoid a full investigation into allegations of discrimination and harassment. The breadth of some drafting was also criticised – for example, where wording inhibits someone from engaging openly with the police, prevents them explaining the situation to friends, family, advisers and future employers or discourages discussion that could benefit others in similar situations.

The WESC put forward several recommendations, including proposals for legislation on stricter drafting requirements, as well as corporate governance measures to introduce additional reporting and give board-level oversight to a named senior manager. The Committee also repeated its call for a mandatory employer duty to protect workers from harassment and victimisation in the workplace, and changes to the tribunal system to remove perceived barriers to litigation. Overall, the report seeks to encourage more employers to settle employment disputes without non-disclosure clauses.

In response to the WESC’s earlier sexual harassment report, the Government is currently consulting on the possible regulation of NDAs in cases of workplace harassment and discrimination. It remains to be seen how much traction this latest report will gain. Some of the recommendations that the WESC has now reiterated were already rejected by the Government in 2018, such as the mandatory employer duty.

Other developments are also taking shape that will be relevant to the Government’s response in this area. At its Centenary Session this month, the General Conference of the International Labour Organisation produced the Violence and Harassment Convention 2019. The Convention includes duties on governments to implement laws and regulations to define and prohibit violence and harassment in the world of work, including gender-based violence and harassment. This demonstrates international recognition that everyone is entitled to a world free from violence and harassment, and that gender-based violence and harassment disproportionately affects women and girls.

Whilst any concrete changes to the law surrounding NDAs have yet to be determined, this latest WESC report further reflects a growing caution. Ahead of specific measures being introduced, HR professionals can still begin to take these revised expectations into consideration. For example, employers are encouraged to evaluate whether/what form of NDAs are required, to be able to give clear justifications for their inclusion and to use plain English wording in clauses to communicate their extent and effect.

Even amongst the criticisms, the WESC recognised the value of NDAs in allowing victims to move on with their lives without experiencing the further emotional and financial costs of litigation, and the need to protect their right to do so if they wish. By keeping the perspective of the individual in mind, employers will already be operating within the spirit of any future changes in this developing area.

If you are interested in how Forbury People can help you handle issues of discrimination in the workplace, please get in touch.

21st June 2019