#MeToo and NDAs: the bigger picture

#MeToo and non-disclosure agreements (NDAs)

When the Hollywood scandal first broke, quite naturally the attention focused on why some prominent men had been able to get away with sexual harassment for so long. That led to scrutiny of the confidentiality or non-disclosure agreements many complainants had been asked to sign in return for receiving a financial settlement.

On both sides of the Atlantic there is a widely held view that in some cases, NDAs have been abused. In the UK, the Women and Equalities Select Committee published a report last year on sexual harassment in the workplace. One of its key recommendations was to “clean up” the use of NDAs. Similar criticism was also made in a later report, published last month, which looks at their use in all discrimination claims, not just those arising from sexual harassment.

What action is being taken by the Government and regulators?

Last year the Government agreed to ask the Equalities and Human Rights Commission to prepare a code of practice on sexual harassment in the workplace, which is expected shortly. In March it launched a consultation on measures to prevent the misuse of confidentiality clauses in cases of workplace harassment or discrimination and the response to this was delivered at the end of July. The Government’s final proposals involve bringing forward further legislation so that:

• No provision in a confidentiality clause can prevent disclosures to the police, regulated health and care professionals and legal professionals
• Any limitations in confidentiality clauses are clearly set out in employment contracts and settlement agreements
• Independent legal advice received by individuals signing confidentiality clauses is enhanced

As well as legislative measures, guidance for solicitors and legal professionals responsible for drafting settlement agreements will be introduced, in addition to enforcement measures for non-compliance.

Since many settlement agreements are drawn up by lawyers, the Solicitors Regulatory Authority has already warned the profession to be aware of its obligations not only to clients, but to the wider administration of justice. It is also clear that regulated individuals, whether in law, medicine or finance, may lose their ability to practice if they are found guilty of sexual or other kinds of harassment in the workplace, regardless of any disciplinary action taken by their employer.

What are employers’ current responsibilities?

Although there is discussion about imposing additional obligations on employers to prevent sexual and other harassment, their legal obligations are already quite extensive. Most obviously, under the Equality Act they are liable for the actions of any worker they engage who commits any kind of discrimination in the workplace, unless they can show that they took all reasonable steps to prevent this happening. Additionally, they have a duty to safeguard the health and safety of their workforce “so far as reasonably practical”, which would extend to taking steps to prevent workplace harassment and to support workers who complain.

Public sector employers have additional, wide ranging, duties under the Equality Act which are also relevant in this context. These include an obligation to have “due regard” to the need to eliminate all kinds of discrimination.

Is dealing with complaints enough?

There is a danger that the public discussion about NDAs focuses too much on the end of the process. Getting NDAs right is important for employers, but not more important than avoiding the need for an NDA in the first place.

If a complaint is raised, applying a properly resourced and robust complaints procedure that is balanced and fair to all concerned is essential. Indeed, it is likely that many employers will consider complaint-handling as only part of the solution. One case of sexual or other workplace harassment is one too many and for each complaint raised, there may well be a number of incidents that have gone unreported.

Towards an inclusive culture

Dealing with workplace harassment complaints firmly and fairly can send an important message, but what else can be done to build a truly inclusive and respectful culture? There are no easy or “one size fits all” solutions here, since each workplace is different. Despite this, there are some base line standards that can and should apply to every work place, regardless of their size or sector. Perhaps the new code of practice we have been promised may come up with some additional ideas, but here are some points to consider in the meantime.

Strong leadership

Strong leadership is essential in cultivating a working environment where people can be themselves. Role-modelling behaviours from the top down are critical. It is therefore important for organisations to be clear about its vision and values and for them to be widely known, understood and promoted within the organisation. Those with power and influence within an organisation have the greatest potential to make the most positive difference, yet many complainants and survivors of sexual harassment in the workplace report suffering at the hands of those who have power and influence over them; the very people who should be custodians of the organisation’s values.

Carrot v stick

On one level, a positive way forward would be to create a culture where people know that sexual harassment in the workplace will be called out, confronted and the harshest penalties applied. This would perhaps go some way towards making a would-be perpetrator think twice before offending. But, rather than rely solely on the “stick”, it would surely be preferable to cultivate an environment where its use becomes redundant and people can come to work in an environment where they can be confident that they will be treated with respect and dignity.

Understanding and recognising harassment

Despite #MeToo shining a long overdue light on workplace harassment, there remains a surprising lack of clarity and understanding in some workplaces about precisely what harassment is, as well a frequent failures to recognise that there is a line and when that line has been crossed. Harassment is still confused, downplayed or dismissed as “banter” and “humour”. The effects on the recipient can be devastating and long-lasting, and the consequences for an organisation can be very costly, not just in terms of financial exposure but in terms of reputational and brand damage, as well as eroding the credibility of the organisation and its senior managers among its own workforce.

Top tips

And finally, while there is no quick fix, a few practical and effective ways of making progress towards achieving a workplace free of sexual and other forms of harassment include:

• Ensuring that your organisation has clear vision and values and that these are role modelled at senior management level and cascaded through the organisation.
• Making your standards and anti-harassment stance known at the outset of the employee/worker relationship and throughout the employee/worker life cycle, including seeking feedback at exit interviews.
• Investing in staff and management training and refreshers as your people progress through your organisation, equipping them with the knowledge and tools that they need to identify workplace harassment as well as empowering them and giving them the confidence to act on it if it does occur or is reported.
• Conducting regular staff engagement surveys that can provide an alternative and safer environment for people to raise concerns that they might not otherwise disclose.
• Considering whether internal rules and requirements (eg dress codes) and your marketing and business development activities (eg social or sporting events) are fit for the modern workplace and as inclusive as they could be, or whether certain gender stereotypes are being perpetuated.