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Confidentiality and Sexual Harassment in United Kingdom

The Government has announced new legal curbs against the use of non-disclosure agreements (NDAs) and other so-called gagging orders to stop workers reporting crimes, harassment or discrimination.

The new proposals pave the way to ensure that confidentiality clauses, including those which involve cash payouts, do not prevent whistleblowers from speaking to the police or disclosing information regarding criminal proceedings.

Prime Minister Theresa May intends to send a “clear message” in light of several high profile cases involving NDAs.

The most recent case involving Sir Philip Green, the Topshop billionaire, arose following an injucntion against the Daily Telegraph which was later lifted. It was reported by the Daily Telegraph that NDAs were signed by five of the tycoon’s staff, with one being paid more than £1m, to allegedly silence complaints.

When allegations of discrimination, especially those of sexual harassment are made, it is the duty of every employer to first investigate to find out what happened. They should also take disciplinary actions in the event if the claim is found to be valid.

Harassment allegations are sensitive and very serious issues. Even if dealt with internally, an employees’ morale can be impacted and in some high profile cases result in media coverage. There could be financial implications for the organization and the employer’s reputation affected. In order to avoid unwanted publicity it has become common practice for companies to want to agree to settlements of such claims as quickly and as quietly as possible. To do so they largely make use of Non-Disclosure Agreements (NDAs) to be signed and to silence those involved.

On 13 November 2018 the Women and Equalities Committee launched an inquiry into the use and effectiveness of such NDAs in discrimination cases. This committee’s inquiry highlighted, that if not properly used, NDAs could be used to silence the victims of harassment as the nature of such agreements could “bully” or “bribe” them into silence. There is also the concern that organizations might be using such agreement to cover up harassment instead of addressing the situation internally. In some cases, the use of these agreements could lead to such harassment continuing, especially if the harassed employee does not leave the role.

Should I sign an NDA?

No employee should be forced or bribed into signing an NDA and if you are being harassed or bullied at work by a colleague or a member of staff in a more senior role it is important to see advice of a no win no fee employment solictor.

Check your company guidelines in response to employee harassment and bullying. It is important that your employer has:

  • written policies made available to inform employees about the organizations non-tolerance to discrimination of any nature, harassment inclusive.
  • regularly review these aforementioned policies to ensure they are up to date and are being adhered to by all employees.
  • organize regular training sessions for all employees. These training sessions should be centred on discrimination, workplace harassment, bullying and victimization.
  • investigate all allegations of harassment, sexual or not. Such investigations should be free, formal and transparent. In doing this, all the facts must be known as no stone can be left unturned. Also, both the victim and the accused should be investigated.
  • Where credible evidence has been presented, promptly take action to discipline the harasser in accordance with the set disciplinary procedure. Note that, due to the nature of the harassment, there might be no other evidence except the testimony of the victim. In this case, the testimony alone is enough to be used as credible evidence
  • consider on a case by case basis if an NDA is necessary or if it is the best option to take for the case at hand.

While NDAs allow for confidentiality, it should be noted that confidentiality is not the only means through which such discrimination issues can be handled. By carefully considering all the available options and by taking appropriate actions on a case by case basis, employers can respond better to allegations of discrimination, especially those of sexual harassment, in their workplace. They can also promote, as far as is reasonably practicable, a workplace that is free of harassment and discrimination. By doing this, they encourage their employees to maintain similar culture as they all work together to ensure that they achieve a common goal of having a discrimination-free workplace.

Our no win no fee Employment Law Solicitors can assist with all types of claims. Naturally, we pride ourselves on providing the best possible service to the highest standards, we offer free employment law advice on all problems. Call us on 0800 756 6605 or 020 3923 4777

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