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Government call to clean up NDAs and give better legal protections for workers, welcomed by Protect (formerly known as Public Concern at Work)

25th July 2018

Protect welcomes the Equality and Women’s Committee’s report calling for a clean up of NDAs (non-disclosure agreements), which can silence whistleblowers.

In a major report published today, following a wide-ranging six-month inquiry, (July 25) the Women and Equalities Committee have found the Government, regulators and employers are failing in their responsibilities to tackle widespread sexual harassment in the workplace. Employers and regulators have ignored their responsibilities for too long, says the Committee, and often legal protections are not available to workers in practice.

Francesca West, Chief Executive, Protect, (formerly Public Concern at Work) which helps whistleblowers raise their concerns in the workplace, and who gave evidence to the Committee, said claimants were sometimes threatened with being pursued for the employer’s legal costs as well as their own in order to encourage settlement.

She said, “I have seen such heavy-handed tactics in relation to a last-ditch effort trying to scare someone off their claim by throwing enormous, not really supportable, cost threats at the door of the employment tribunal to say, ‘You had better drop that claim or we will be pursuing you for £100,000 worth of costs’.

Protect told the Committee that it was not uncommon to find potentially unenforceable confidentiality clauses in settlement agreement cases from people who contacted the charity for advice.

The charity told the Committee many disclosures about sexual harassment would qualify as protected disclosures, but that the current design of whistleblowing legislation was “unhelpful for the vast majority of individuals.”

An additional barrier to the reporting of sexual harassment is that women are often less likely than men to raise concerns where they are a witness to wrongdoing, malpractice or corruption in their workplace, including incidents of sexual harassment. Our survey research with YouGov has shown that women are 12% less likely than men to raise their concerns, with 26% of female respondents to the survey identifying management involvement in the wrongdoing as the biggest barrier to stopping them coming forward, where only 16% of male respondents shared this worry. Other barriers that women were more concerned about was the response of colleagues and the risk of being identified.

Protect welcomed the report’s five priorities for employers (as below) – particularly the priority around NDAs calling for the legal profession to use them in the correct context, and for conflicting confusing wording to be wiped out.

• A new duty on employers to prevent harassment, supported by a statutory code of practice outlining the steps they can take to do this; and ensure that interns, volunteers and those harassed by third parties have access to the same legal protections and remedies as their workplace colleagues;
• Require regulators to take a more active role, starting by setting out the actions they will take to help tackle this problem, including the enforcement action they will take; and by making it clear to those they regulate that sexual harassment is a breach of professional standards and a reportable offence with sanctions;
• Make enforcement processes work better for employees by setting out in the statutory code of practice what employers should do to tackle sexual harassment; and by reducing barriers to taking forward tribunal cases, including by extending the time limit for submitting a claim, introducing punitive damages for employers and reducing cost risks for employees;
• Clean up the use of non-disclosure agreements (NDAs), including by requiring the use of standard, plain English confidentiality clauses, which set out the meaning, limit and effect of the clause, and by making it an offence to misuse such clauses; and extending whistleblowing protections so that disclosures to the police and regulators such as the EHRC are protected;
• Collect robust data on the extent of sexual harassment in the workplace and on the number of employment tribunal claims involving complaints of harassment of a sexual nature.

Protect Chief Executive Francesca West added, “We would welcome a Government backed public awareness campaign to eradicate sexual harassment in the workplace, the report has correctly identified that whistleblowing should be key component of this and we offer our expertise to this.”

If you need advice around an NDA or have a workplace concern that affects others, you can call 020 7404 6609 for advice.