The whistleblowing charity Protect has criticised the government consultation on the use of non-disclosure agreements (NDA) describing the proposals as making only a “small dent” in current practices when concluding settlement agreements. The proposals also address “only a small part” of the wider problem of sexual harassment in the workplace.
The government’s main proposal on confidentiality obligations is to prohibit any agreement from stopping the worker taking information to the police. However Protect believes this is not only unambitious but also puts the focus in the wrong place. The police would only get involved if the allegations meet the threshold for criminal behaviour. The majority of cases are not about criminal law but about rights in equality law, where the police have no role.
Protect focuses on the difficulty presented by confidentiality in harassment cases in that they prevent victims from raising concerns to an appropriate body and other employees from detecting a wider culture of harassment in the organisation. Protect therefore recommends that the government prohibits agreements from stopping a worker making a disclosure about harassment or discrimination to the Equality and Human Rights Commission (EHRC). Giving it this role would allow it to piece together individual reports and take action where necessary.
Protect added that the government needed to look more closely at prevention – tackling workplace harassment and discrimination before it arises. It urged the government to adopt the recommendation of the Parliamentary Women and Equalities Committee for a requirement on employers to prevent and address sexual harassment at work. It said that by the time a worker comes up against confidentiality clauses, much of the damage has already been done.
