Non-disclosure agreements could be allowing discrimination to thrive

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Gagging orders were in the news again this week with Channel 4 being asked by MP and former culture secretary Maria Miller to explain its alleged use of non-disclosure agreements against female employees with regards to equal pay, discrimination and victimisation cases.

Non-disclosure agreements are a legally binding contract that typically establish a confidential relationship in which parties agree not to disclose sensitive information to others.

When they are used to protect organisational secrets such as client lists, trade secrets or commercial deals they can be invaluable.

However, non-disclosure agreements are increasingly coming under scrutiny due to how employers are using them as part of settlement agreements to silence employees that have alleged bullying, discrimination or harassment.


The ethics of NDAs:

NDAs should not be used to silence workplace harassment

HR must find its backbone and stop using NDAs

NDAs aren't inherently wrong

 


Miller has campaigned against the use of non-disclosure agreement reporting she is aware of several cases in which present and former employee have been silenced after raising allegations of discrimination at work. 

The issue is not limited to Channel 4 and the true extent of the challenge is almost impossible to define due to the very fact employees have signed non-disclosure agreements are silenced by their current or former employer.

This could cover up the reality of having a very broken toxic working environment where unacceptable behaviours are allowed to continue in the workplace.

Nobody comes to work expecting to not be respected and valued. Every person, irrespective of where the role sits in the hierarchal structure, should be treated with courtesy and afforded their dignity.

However certain individuals will deem it okay to marginalise or humiliate their fellow work colleagues with non-disclosure agreements being used as a go-to option to remove the employee on the receiving end of the abuse rather than tackling the abuser through the organisation’s grievance and disciplinary processes.

The problem arises when employers place pressure on employees to accept settlement agreements to forgo an investigation, appeal stages, claims at tribunals to either save time and costs or to safeguard their senior leader.

Employees are sold the narrative that even if they are successful and the case goes all the way to tribunal, what will be awarded is limited to damages. They are persuaded that taking a sum of money now, rather than taking on the employer and their lawyers at tribunal, is the better option.

An investigation or tribunal hearing can be emotionally draining for the employee so getting out with an agreed sum of money, a bland reference and a vow of silence can seem to be the least painful option.

Settlement agreements in themselves are not necessarily a bad thing. Even with the dream job, the employment relationship is not intended to be forever and sometimes a settlement can be the best way to bring that relationship to an end following a without-prejudice conversation.

It may also be a possible solution wherein an employee has alleged abuse and the matter has been addressed and remedied through the grievance and disciplinary process, but trust has now broken down. If mediation between parties has not worked or a change of line manager or redeployment is not an option, then a settlement agreement can be helpful as a solution.

The gagging element is the problem with non-disclosure agreements as it prevents employees from being able to raise their experience of alleged abuse so do not protect the victim but an employer’s reputation and the career of the perpetrator, who effectively has a licence to carry on knowing the organisation has their back with the remaining employees accepting this is how things are at their workplace.

It is encouraging to see universities taking a stance to end the use of non-disclosure agreements to silence complaints on sexual assault, harassment and bullying referred to as the ‘#CantBuyMySilence’ pledge.

This campaign is supported by the higher education minister Michelle Donelan who has said non-disclosure agreements "silence victims, protect abusers, and support a culture where sexual assault and violence can hide" and she is determined to see this "shabby practice stamped out on our campuses".

The BBC reported in 2020 nearly a third of universities had used non-disclosure agreements to silence student complaints related to sexual misconduct, bullying and harassment.

In line with the #MeToo movement, which encourages abused women to raise their voices, this seems to be the right balance to strive for all staff when considering whether or not a non-disclosure agreements is appropriate, particularly for those organisations claiming to value their people and want to have an engaged workforce where everyone feels safe and dignified.

Shakil Butt is founder of HR for Hire