Yesterday, The Women and Equalities Select Committee (WESC) published a report titled “The use of non-disclosure agreements in discrimination cases”.
The full report can be viewed online but the main concerns identified, and recommendations made are summarised below.
The Women and Equalities Select Committee (WESC) report was published because of ongoing concerns about how allegations of sexual harassment were being covered up without proper investigation and without sanctions for perpetrators.
In preparing their report, the WESC received written and oral evidence from a range of people and organisations including employers, employees, unions, human resources professionals, charities, employment lawyers, academics, regulators and professional bodies. They also considered evidence from those with personal experiences of workplace discrimination and harassment, especially those who have signed an NDA.
Some of the main concerns identified in the report can be summarised as follows:
- An imbalance of power between employers and employees.
- That secrecy is being traded for things that should be given as a matter of course – like references.
- That large employers are making claims incredibly difficult for employees rather than tackling issues;
- Publication of online Judgments may cause employees to become blacklisted;
- Time limits are too short and should be extended to perhaps 6 months, rather than 3;
- The lack of free legal advice available to employees, the fact that the Tribunal system can appear to be onerous, and that employers often create fear by making costs threats (some of which are entirely unfounded);
- Non-disclosure agreements could be preventing others from coming forward to complain about harassment and prevent those entering into them being able to move on with new employment due to secrecy surrounding their last employment;
As a result of the above concerns, a number of recommendations were made. The main recommendations which are incredibly important for all involved in this area of law are as follows: – :-
- The Government should begin an awareness-raising programme for employers and employees about how to handle grievances fairly and effectively, including signposting to relevant guidance and support.
- The Government should consider requiring employers to investigate all discrimination and harassment complaints regardless of whether a settlement is reached.
- The Government should legislate to require employers to provide, as a minimum, a basic reference for any former employee confirming that they worked for that employer and the dates of their employment. It should do this within the next year.
- Time limits to be extended to six months in cases where sexual harassment, or pregnancy or maternity discrimination, is alleged. A wider review of the time limit in all discrimination cases.
- The Government commission an equalities review of the employment tribunal system and report publicly on its findings.
- The Government should review legal aid thresholds
- The Government must ensure that there is adequate guidance for tribunal judges and litigants about the circumstances in which a refusal to settle a claim may be considered “unreasonable”.
- The Government should legislate to ensure that NDAs cannot be used to prevent legitimate discussion of allegations of unlawful discrimination or harassment, and in the public interest consider how to stop their use to cover up allegations of unlawful discrimination, while still protecting the rights of victims to be able to make the choice to move on with their lives.
- The Government should make it an offence for an employer or their professional adviser to propose a confidentiality clause designed or intended to prevent or limit the making of a protected disclosure or disclosure of a criminal offence.
- The Government should legislate to ensure that NDAs cannot prevent signatories from sharing information that may be helpful to a potential discrimination or harassment complaint or claim by another employee.
- We restate our previous recommendation that the use of provisions in confidentiality agreements that can reasonably be regarded as potentially unenforceable should be clearly understood to be a professional disciplinary offence for lawyers advising on such agreements.
- Regulators of members of the legal profession must make it clear to those they regulate that they will take rigorous enforcement action in this area if they become aware of actions and behaviours that do not meet the high ethical standards expected of legal professionals. This should be set out in guidance and followed up by appropriate action.
If you have suffered harassment at work and need professional legal advice, please don’t hesitate to contact us. You can get more information from our website www.lincslaw.co.uk, via email to ContactUs@lincslaw.com or by calling 01522 440512.
Director, Specialist Employment Law Solicitor