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Protect says the NDA Government consultation doesn’t go far enough

The Government has brought forward proposals to tackle NDA (non-disclosure agreements) in harassment and discrimination cases following the #MeToo movement. Our view is these proposals will make just a small dent in improving common practices in concluding settlement agreements. The proposals address only a small part of the wider problem of sexual harassment in the workplace.

The government’s main proposal on confidentiality obligations is to prohibit any agreement from stopping the worker taking information to the police. Protect has highlighted that this is not only unambitious but also puts the focus in the wrong place. The police would only get involved if the allegations met the threshold for criminal behaviour. The majority of these cases are not about criminal law but about rights in equality law, where the police have no role.

The difficulty presented by confidentiality in harassment cases is that they prevent workers from detecting a culture of harassment in the organisation. Victims are prevented or discouraged by draconian confidentiality clauses from raising concerns to an appropriate body.

To tackle this, Protect has recommended  the government prohibit agreements from stopping a worker making a disclosure about harassment or discrimination to the Equality and Human Rights Commission (EHRC). The EHRC is already tasked with ensuring compliance with laws on discrimination and harassment. Giving it this specific role as a receiver of information about discrimination and harassment would allow it to piece together individual reports and take action where necessary.. The important point is that workers should feel comfortable sharing their experiences with a body that is able to take some action against widespread breaches of the law.

It seems others share our view to take stronger, bolder actions against exploitative non-disclosure agreements. Last week, the Health Secretary Matt Hancock announced proposals to ban non-disclosure agreements in the NHS. While we welcome the government’s concern for non-disclosure agreements that may stifle whistleblowing, it must be recognised that this is only a small part of the picture. A successful whistleblowing scenario is one in which the worker can raise the concern and keep their job. The cost to the whistleblower of raising concerns should not be that they must leave their employer.

This highlights the need for government to look more closely at prevention, tackling workplace harassment and discrimination before it arises. We would urge the government to adopt the recommendation of the Women and Equalities Committee to introduce a requirement on employers to prevent and address sexual harassment at work. By the time a worker comes up against confidentiality clauses, much of the damage has already been done.

Government consultation: Confidentiality clauses: measures to prevent misuse in situations of workplace harassment or discrimination

Protect’s consultation response

By Protect adviser Dugald Johnson