The Government must reset the parameters around the use of
non-disclosure agreements (NDAs) and address the failure of the
employment tribunal system to ensure all employees who have
experienced discrimination have a meaningful route of redress,
says the Women and Equalities Committee.
In today’s major report, MPs condemn the routine cover-up of
allegations of unlawful discrimination and harassment in the
workplace, and the fact that some employers fail to investigate
allegations of unlawful discrimination properly - or at
all.
The report highlights the difficulties of pursuing a case at
employment tribunal and the substantial imbalance of power that
can exist between employers and employees which can drive
employees to feel that they have little choice but to reach a
settlement that prohibits them from speaking
out.
The Committee proposes a range of solutions. The Government
should:
- Ensure that NDAs
cannot prevent legitimate discussion of allegations of unlawful
discrimination or harassment, and stop their use to
cover up allegations of unlawful discrimination, while still
protecting the rights of victims to be able to make the choice to
move on with their lives;
- Require standard,
plain English confidentiality, non-derogatory and similar
clauses where these are used in settlement
agreements, and ensure that such clauses are suitably
specific about what information can and cannot be shared and with
whom;
- Strengthen corporate
governance
requirements to require employers to meet
their responsibilities to protect those they employ from
discrimination and harassment; and
- Require named senior
managers at board level or similar to oversee
anti-discrimination and harassment policies and procedures and
the use of NDAs in discrimination and harassment cases.
Chair of the Women and Equalities Committee, MP, said:
“We heard during our previous inquiry into sexual harassment in the
workplace that the current use of non-disclosure
agreements in settling such allegations is at best murky and at
worst a convenient vehicle for covering up unlawful activity with
legally sanctioned secrecy.
“It is particularly worrying that secrecy about allegations
of unlawful discrimination is being traded for things that
employers should be providing as a matter of course, such as
references and remedial action to tackle discrimination.
“After signing an NDA, many individuals find it
difficult to work in the same sector again. Some suffer emotional
and psychological damage as a result of their
experiences, which can affect their ability to work and move on.
There is also the financial penalty of losing a job and bringing
a case against an employer.
“Organisations have a duty of care to provide a safe
place of work for their staff and that includes protection
from unlawful discrimination.
“Some organisations now routinely settle employment
disputes without the use of NDAs. We have put
forward a range of measures to ensure more follow
suit.”
The Committee renews its previous calls for the Government
to:
- Place
a mandatory duty on employers to protect workers from harassment
and victimisation in the workplace; and
-
Urgently improve the remedies that can be awarded by employment
tribunals as well as the costs regime to reduce disincentives to
taking a case forward. Tribunals should be able to award punitive
damages, and awards for the non-financial impact of
discrimination should be increased significantly.
These actions must be taken urgently to bring about an immediate
step change in the use of NDAs in discrimination cases.
