Using Non-Disclosure Agreements in Cases of Discrimination & Harassment

June 18, 2019, By

Women & Equalities Committee report on the use of NDA’s in discrimination and harassment cases

The MPs serving on the House of Commons, Women and Equalities Select Committee (WESC) have condemned the ‘widespread and commonplace’ use of non-disclosure agreements in a deliberate attempt to prevent employees from discussing allegations of discrimination and harassment.

The WESC’s report argues that there is a tendency for employers to use NDAs to cover up allegations of unlawful discrimination or harassment rather than take steps to correctly investigate them.  Many employees are not willing nor able to pursue claims through the employment tribunal due to cost and time pressures and therefore feel that they have little option but to accept a settlement terms to include a non-disclosure clause.

MPs claim that this widespread practice is allowing perpetrators misconduct to continue unchecked and prevents victims from speaking up or sourcing the support they need to deal with situations of this nature.  There are also financial implications for employees who find themselves in these circumstances, many of whom have to take steps to secure alternative employment and the subsequent loss of their statutory employment rights.

The WESC state it is in the public interest that employers tackle discrimination and harassment in the workplace by investigating any allegations which come to light.  The report makes four key recommendations to avoid the use of NDAs in resolving employment disputes:

  • New legislation to ensure that NDAs cannot prevent “legitimate discussion” of allegations among employees to enable victims to gather evidence which may support their claims;
  • Ensuring that confidentiality and non-derogatory statements clauses in settlement agreements are drafted in clear, standard English and clarify specifically what information can be shared and with whom;
  • Requests that the government strengthen corporate governance requirements to ensure that employers meet their responsibilities to protect staff from discrimination and harassment;
  • Organisations should appoint a senior manager at board level (or similar) to oversee the implementation of anti-discrimination and harassment policies and procedures and to monitor the use of NDAs.

The WESC has also urged the Government to review the remedies that are available in the employment tribunal to include the introduction of punitive damages and an increase on injury to feelings awards.  MPs have also called for a change to the cost regime to encourage employees who may wish to pursue a claim and where possible require employers to pay the costs incurred by employees when seeking legal advice.