EHRC wants ‘gagging’ clauses banned in sexual harassment cases

The Equality and Human Rights Commission (EHRC) has released a report saying that employers should be prohibited from asking employees to sign confidentiality agreements in sexual harassment cases, in order to better protect individuals found to have suffered in the workplace. 

Hannah King, associate in the employment law team, answers some key questions around the proposed ban.

Are non-disclosure agreements commonly used in cases of sexual harassment? If so, why?

It is common when reaching a financial arrangement with an employee, who may have made allegations of sexual harassment (and can therefore bring a claim), to ask them to enter into a settlement agreement (or ACAS COT3 agreement).  This means that the employee cannot then pursue a Tribunal claim against the company relating to those matters.  It is common as part of those terms of the settlement agreement to include a confidentiality clause and sometimes a non-bad mouthing clause. 

These usually means that the employee is prevented from disclosing the facts and circumstances leading up to the settlement and the terms of the agreement itself (in particular the sums being paid) and prevents them from making any derogatory statements about the employer or its employees.  These clauses are predominately included for the employer’s benefit to ensure that they have a complete clean break and for reputational damage limitation, but they also give the employer an argument that if the employee is in breach of the settlement agreement it can enable the employer to seek recovery of the sums paid under the terms. 

Will strengthening legal protections help to prevent incidents of harassment and encourage a culture change?

By not allowing companies to ‘gag’ their current or former employees about harassment, this could encourage employees to come forward and might actually lead to employers being able to address issues early on, before the situation deteriorates and becomes unsalvageable. 

Also, as the limitation period for bringing sexual harassment claims is only 3 months less one day from the date of the act complained about, it can take some time for an employee to be in a position to even contemplate taking formal action.  While a Tribunal can already extend time limits where it is ‘just and equitable’ to do so, an increase to limitation periods in such circumstances would be welcomed. 

However, there  needs to be a balance between protecting the rights of the alleged victims and ensuring that there is also appropriate protection from employees making spurious or malicious allegations.

What should employers be doing to ensure they have workplaces free from sexual harassment?

1. Have clear policies and procedures in place relating to equality, diversity, anti-bullying and harassment.  These policies should be underpinned by a disciplinary policy which will be invoked in cases of a breach and a grievance procedure which should encourages employees to come forward and disclose their concerns;
2. Provide training to all employees on diversity and equality and ensure they understand what is expected of them and the consequences of any breach or failure to comply with the company’s policies;
3. If someone makes a complaint, ensure that this is dealt with promptly, taken seriously and an appropriate level of investigation is undertaking.  Any issues or recommendations identified should be addressed and implemented to prevent any further reoccurrence. 

If you would like to speak to Hannah on any of the issues raised, review employee policies or provide equality and diversity training, please call 01753 278659 or email employmentlaw@bpcollins.co.uk.