Sexual harassment in the workplace: the use of non-disclosure agreements
By Teni Shahiean, CEO at OTS Solicitors
With the #metoo movement it seems that every day there is someone making allegations of sexual harassment against a celebrity.
These high profile cases generate publicity. However, what about the average employee? To whom do they turn to if they experiences sexual harassment in the workplace?
It was thought that sexual harassment in the workplace was relatively uncommon. Campaigns such as the #metoo movement have encouraged victims to speak out. Furthermore, public bodies, such as the House of Commons Women and Equalities Committee, have highlighted the problem and its prevalence.
What is sexual harassment?
Top employment law solicitors often have to explain to those facing employment law tribunal claims that the definition of sexual harassment is very wide.
The Equality Act 2010 defines sexual harassment as:
“unwanted conduct of a sexual nature”
Which has the purpose or effect of:
“creating an intimidating, hostile, degrading, humiliating or offensive environment”.
Whilst a sexual assault or groping might be an obvious form of sexual harassment, many employers struggle to view other forms of behaviour, such as catcalling, wolf whistles and calendars as sexual harassment.
The best employment law solicitors emphasise the importance of employers recognising sexual harassment in all of its various forms.
Any type of sexual harassment can result in an employment law tribunal claim. Furthermore, if employers do not put robust sexual harassment policies in place, a culture of “laddism” can develop.
The top London employment law solicitors advise that the critical issue is the effect of the sexual harassment on the victim, rather than the extent of the sexual harassment.
How can OTS Solicitors help?
OTS Solicitors specialise in employment law providing comprehensive advice to employers and employees on day-to-day employment law issues such as allegations of sexual harassment, dismissals and grievances.
We also provide bespoke training services for employers and human resource departments.
For advice on any aspect of individual or company employment law please call us on 0203 959 9123 to arrange an appointment to speak to one of our experienced London employment solicitors.
The statistics
In November 2017, a BBC survey found that 40% of women and 18% of men had experienced sexual harassment in the workplace.
These statistics show that sexual harassment is a common occurrence in the workplace. Furthermore, sexual harassment is not confined to females.
Statistically the following groups of workers are more likely to experience sexual harassment in the workplace:
• Women age 18 to 24;
• Members of sexual minority groups;
• Workers with irregular contracts, such as zero hours workers or freelance staff;
• Workers with a long-term illness or disability.
Some employees will experience racially motivated attacks together with sexual harassment. It can be difficult for both employer and employee to work out if the sexual harassment is racially motivated or not. The important aspect is the impact of the behaviour on the victim, whatever the reason for the conduct.
Sexual harassment and non-disclosure agreements
The naming, by Lord Hain, of Sir Philip Green as the businessman behind the court of appeal injunction to stop the Daily Telegraph from reporting on allegations of sexual harassment in the case of ABC v Telegraph Media Limited [2018] has made the news.
The case is important, not just because of the injunctive relief, but because of the judge’s comments about non-disclosure agreements and their use when employees make allegations of sexual harassment.
What is a non-disclosure agreement?
A non-disclosure agreement is a legal contract between two parties that contracts one or both parties not to disclose information, such as alleged sexual harassment.
Why sign a non-disclosure agreement?
An employee often signs the non-disclosure agreement as a condition of their settlement terms with their employer.
A non-disclosure agreement normally means that any settlement or financial payment is conditional on them signing and complying with the non-disclosure agreement.
Non-disclosure agreements and allegations of sexual harassment
It is often said that non-disclosure agreements silence victims of sexual harassment. Some say they are damaging as they stop the message getting out about sexual harassment in the workplace.
The best London employment law solicitors say that non-disclosure agreements have their place in sorting out employment law settlements but they must be carefully drafted. This is to ensure the employer is protected but does not face adverse publicity through asking an employer to sign a non-disclosure agreement.
Equally, the top London employment law solicitors say it is important that an employee does not feel coerced into signing a non-disclosure agreement.
The select committee report and non-disclosure agreements
The 2018 Report of the House of Commons Women and Equalities Select Committee called “sexual harassment in the workplace” looked at the use of non-disclosure agreements in cases of sexual harassment in the workplace.
The select committee report stated that:
• There are worries that non-disclosure agreements are being used as a means to silence victims of sexual harassment after they have been “bought off”;
• The silencing of victims of sexual harassment does not allow other victims to come forward ;
• There should be legislation on non-disclosure agreements so that employers are required to use a standard wording for a non-disclosure agreement;
• Non-disclosure agreements should be easily understandable and written in plain English
• A non-disclosure agreement should clearly set out the meaning, effect and limits of confidentiality clauses ;
• In a non-disclosure agreement, there should be a clear explanation of what disclosures are protected under whistleblowing legislation and cannot be stopped or restricted;
In the court of appeal injunction case, there were non-disclosure agreements. The judge looked at the select committee report on non-disclosure agreements.
The select committee suggested the better control of non-disclosure agreements in the workplace to make sure that their use was limited to ethical situations.
The court of appeal noted that the select committee was not calling for the banning of non-disclosure agreements but proposed limiting non-disclosure agreements to ethical scenarios in the workplace.
The court of appeal acknowledged that the agreements they were considering as part of the injunction application allowed disclosures to regulatory and statutory bodies.
Therefore, the court concluded that because of the wording of the non-disclosure agreements the injunction order should be made.
Non-disclosure agreements, sexual harassment and confidentiality clauses
It appears from the court of appeal’s judgment and the select committee report, that non-disclosure agreements can still be used in sexual harassment cases.
However, the court indicated that confidentiality clauses need to be carefully drafted to ensure that it was clear that the employees’ whistleblowing rights are retained.
The select committee report goes as far as to say that it should be an offence for an employer or their employment law solicitor to propose a confidentiality clause that is designed or intended to prevent or limit the making of a protected disclosure.
The select committee view on the drafting of non-disclosure agreements emphasises just how important it is to get employment law advice from a top London employment law solicitor.
New statutory code of practice
A new statutory Code of Practice is to be developed by the Equality and Human Rights Commission. Its purpose is to guide employers on their legal responsibilities on sexual harassment in the workplace.
On 18 December, the Equalities Office published 12 announcements on preventing sexual harassment in the workplace.
• Introduce the Code on sexual harassment;
• Carry out awareness-raising work with the UK Advisory Conciliation and Arbitration Service (ACAS) and employers;
• Carry out surveys to gather regular data on the prevalence of sexual harassment;
• Consult on non-disclosure agreements;
• Consult on the need for a new legal duty on employers to prevent sexual harassment in the workplace;
• Consult on strengthening the laws on third-party harassment in the workplace.
• Consult on whether further legal protections are needed for interns and volunteers;
• Consult to explore the appropriateness of extending Employment Tribunal time limits for discrimination and harassment claims;
• Make the public sector take steps to prevent sexual harassment in the workplace;
• Work with regulators in situations where sexual harassment in the workplace is particularly relevant to ensure they are taking action.
• Consider whether lessons can be taken from the criminal justice system to adapt Employment Tribunal procedures to make sure sexual harassment claimants have protection;
• Make sure that the list of organisations who can receive whistleblowing information contains the right organisations.
How can OTS Solicitors help?
It is always difficult for an employer to be judge and jury when an allegation of sexual harassment is made. After all, both employees have employment law rights and both may want the employer to respect confidentiality and privacy.
On the other hand, employers do not want to fall foul of whistleblowing legislation or suffer reputational damages if allegations of sexual harassment and draconian non-disclosure agreements come out later.
Top London employment law solicitors recommend that all firms have clear sexual harassment policy in place so that both employer and employees know where they stand and that the best London employment law advice is taken on the contents of non-disclosure agreements in any case of sexual harassment allegations.
For advice on any aspect of individual or company employment law please call us on 0203 959 9123 to arrange an appointment to speak to one of our experienced London employment solicitors.