Calling time on NDAs in discrimination cases
Rebecca Hilsenrath, October 28, 2019
NDAs were created to protect trade secrets. They should not be used to silence victims, hide harassment or protect perpetrators
It’s two years since #MeToo. Two years since 'NDAs' entered common parlance. Two years since we realised the extent to which non-disclosure agreements are being used to cover up discrimination, harassment and victimisation in workplaces. And yet employees are still having to ask themselves difficult questions… Would it ruin my career to speak out? Could I lose my job? Should I stand up to stop others being harmed? Will anything change if I do?
In 2019 this should not be happening. People shouldn’t even be questioning whether to speak out. If we aren't shocked by this it’s only because we’ve become inured. The idea that our workplaces are not safe is inherently shocking – we spend more time in them than in our homes. And safety is the bare minimum that every employer owes their workforce.
Discrimination, harassment and victimisation cause damage and distress anywhere. But in the workplace it is devastating because the victim isn’t free to walk away. And the use of NDAs in this space is a perversion of proper employment practice. NDAs were created to protect trade secrets. They should not be used to silence victims, hide harassment or protect perpetrators. A nanosecond’s reflection will reveal these agreements to be utterly shameful.
Further reflection leads to the inescapable conclusion that we shouldn’t be relying on the brave voices of victims to speak out. We said in our 2018 report that it was time to turn the debate on its head. Employers should be putting robust policies and procedures for reporting in place, and employees should be given appropriate training and support. The option to sign an NDA should still be available at an individual’s request but only to protect their own wellbeing, never that of their employer.
We have consistently called for a new mandatory duty for employers to put measures in place to prevent harassment in the workplace, and last week (17 October) we launched guidance for both employers and employees offering clarity on the law around NDAs. Our guidance makes clear that nobody should be silenced and sets out a simple and accessible list of good practice.
It’s about being a good employer and calling out behaviours that have no place in a modern working environment. We are saying: never ask a worker to sign a confidentiality agreement that would prevent them from making a discrimination claim against you. Don’t use confidentiality agreements to stop employees from whistleblowing. Always give your worker time to read and fully understand the terms of an agreement. Monitor the use of confidentiality agreements in your workplace. And keep updated policies on issues like bullying and harassment.
None of this is beyond the reach of any employer. Some businesses with recent experience of harassment have been looking at what they’ve learnt and taking steps to address it and avoid it happening in future. In 2018 the Old Vic devised a new pastoral initiative, the Guardians Programme and Network. An Old Vic Guardian is a neutral and “trained member of staff who acts as a sounding board for colleagues who have something they might want to share, but are unsure of the best way of doing so[…] They provide advice as to informed ways of managing issues and how to escalate them, where appropriate[…] Guardians reassure people that they have a voice and can use it.”
We know what needs to be done and there is evidence out there that it works. Good employers know it.
Rebecca Hilsenrath is chief executive at the Equality and Human Rights Commission