Recruiters urged to act on sexual harassment following response to NDA report

by Recruiter Magazine

Recruiters have been urged to take a zero-tolerance approach to sexual harassment and ensure staff are trained so they can effectively deal with complaints.

The call follows today's response from government to a Women and Equalities Committee (WESC) report into the use of non-disclosure agreements (NDAs) to cover up discrimination and harassment.

The response sees government commit to bringing forward legislation that will ban the use of NDAs to stop staff reporting discrimination to police, explore which areas NDAs can cover, and look into simplifying the tribunal system.

But Chris Tutton, partner at law firm Synchrony Law, told Recruiter the government's response would disappoint many, as it had not fully accepted the recommendations.

"The government indicates in its response, for example, that the employment tribunal system already protects claimants sufficiently, and points out that discrimination awards are uncapped," he said.

"The government has already consulted on introducing legislation that would make it clear that confidentiality clauses could not prevent disclosures to the police. In its response to the WESC recommendations, the government agrees with the committee's recommendation to go further and extend this provision so individuals will also be able to disclose confidential information to legal professionals and health and care professionals. The government believes this allows complainants victims to obtain legal advice and medical support by speaking to professionals governed by existing confidentiality codes."

"The government declined to extend the limit on NDAs to include friends, family and victims, as recommended by the WESC, stating that this may undermine the legitimate use of NDAs as they are not subject to any obligation of confidentiality," said Tutton.

"The WESC's view was that employers use the withholding of a reference as leverage over employees who have complained of harassment, in order to reach a settlement. The government says it will consider further whether to introduce a requirement for employers to issue a basic reference to all employees."

"The WESC had recommended that all employers be required to investigate every allegation of sexual harassment. The government response was that this decision should be left to the employer to assess, based on the specific circumstances," he said.

However, Tutton added that the government has accepted the WESC's recommendation that the limitations of a confidentiality clause be set out to employees in their written statement of terms.

"From next April, as part of the Taylor Review on modern employment practices, agencies will need to provide all workers with a key information document containing a written statement of terms before their start date. Under the government proposals, this document would also need to include information about the limitations on confidentiality clauses in the contract," he said.

Consequently, Tutton recommended agencies take the following steps:

  • ensure the firm's leadership sets out a zero-tolerance approach to bullying and harassment in the workplace;
  • carry out core training for all staff and managers, with modules on equality and diversity, anti-discrimination legislation, and guidance on the agency's policies;
  • establish a group of trained staff whom employees can approach with any concerns.

Meanwhile Katy Meves, partner at law firm Springhouse Solicitors, told Recruiter that while the government has agreed to put legislation in place for some of the proposed changes, many have not been agreed.

"No one should expect this thing to be finalised very quickly - especially if there is going to be a general election soon," she said.

"The government has agreed to legislate that NDAs must not include provisions that prevent or imply that an individual cannot disclose information to the police or regulated health and care professionals and legal professionals. However, this is hardly radical, as it is arguable that this is the case now."

"Also of note is the government's agreement to consider further whether to introduce a requirement for all employers to give all employees a basic reference. This is because it is felt that employers gain significant bargaining power from their ability to choose whether to provide a reference," said Meves.

"While the aim of preventing misuse of NDAs is well intentioned, this is a complex area of law, and the difficulty lies in understanding just what 'misuse' looks like. There is benefit to the victims of sexual harassment in confidentiality, too, so the government is trying to walk a fine line in formulating these reforms - while also being seen to satisfy the'something must be done brigade'."

Nick Evans, a partner in the employment team at City law firm Fletcher Day, told Recruiter the government is making the right noises without committing to anything far-reaching.

"However, its commitments include simplifying the language of NDAs, so restrictions are clearly understood and making it clear disclosure can be made/cannot be prevented to regulators, the police and healthcare professionals," he said.

"While the government has not committed to any real firm timetable for change, that change will come, and it is far better for recruiters and employers to be ahead of the game. A look at the EHRC recent guidance (October 2019) is a good starting point for a best- practice approach."

John Hayes, managing director at law firm Constantine Law, told Recruiter the government's response demonstrates the direction of travel for UK employers in the #MeToo era.

"The government wants to legislate to restrict the use of confidentiality clauses in discrimination cases, so that it cannot preclude disclosures to the police, legal professionals and healthcare professionals. These will not be banned, but they will have to be justified and carefully thought through. Employers will not be allowed to cover up a culture of discrimination with the blanket use of NDAs, as has happened in some high-profile cases," he said.

"The government guidance states that NDAs should not be the end of the matter (as they frequently are) if there is a culture of discrimination. These acts should still be investigated. Settlement agreements and equal opportunities policies will need to be reviewed and amended in the light of these proposals."

 

This article was written by Graham Simons and first published by Recruiter on 29 October 2019.

For further advice, or to discuss your case, please contact Nick Evans

 

The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.

6 November, 2019
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