Call for law requiring employers to investigate discrimination and harassment complaints

The Women and Equalities Committee has expressed concerns that employers are using non-disclosure agreements to avoid investigating discrimination and harassment complaints.  As a result, employers are not holding perpetrators to account. The Committee has called on the Government to require employers to investigate all discrimination and harassment complaints, even where they reach a settlement. It also calls on the Government to legislate to ensure employers are not able to use NDAs to cover up unlawful discrimination and prevent legitimate discussion of discrimination and harassment allegations.  

In a wide-ranging report, it also says employers should be required to report annually on discrimination and harassment complaints they receive and on their use of NDAs. 

What was the scope of the NDAs?

The Committee recognises that employers should be able to stop employees talking about the amount of compensation received but says:

• Confidentiality, non-disparagement and similar clauses in settlement agreements need to be clear and specific about information that can and cannot be shared
• A settlement agreement should not prevent an employee discussing with their professional advisers discrimination and harassment experienced at work
• Individuals should be able to nominate family and friends with whom they can discuss restricted issues 
• Individuals should be able to disclose to a third party or new employer why they left their previous job 
• Individuals should be able to discuss potential claims with other alleged victims and support them in raising complaints and bringing claims 

What sanctions were proposed?

The Committee agrees with the Government’s proposal that agreements purporting to prevent legitimate disclosure of discrimination allegations should be unenforceable.  However, it considers this does not go far enough and reiterates its view that:   

• It should be an offence for an employer or their professional advisers to propose a confidentiality clause designed or intended to prevent an employee blowing the whistle or disclosing a criminal offence
• It should be a disciplinary offence for a lawyer advising on a settlement agreement to use potentially unenforceable confidentiality provisions 

What was the Committee’s response to the government’s advice?

The Committee welcomes the Government’s proposed extension to the requirement for independent advice on settlement agreements to cover the effect of confidentiality provisions. It recommends that employers should be required to make a financial contribution to cover the cost of advice.  As a minimum, this should cover the content and effect of any confidentiality, non-derogatory or similar clauses and any concerns about their reasonableness or enforceability. It should also cover the cost of negotiating those terms. The employer should have to pay the contribution even if the employee does not sign the agreement.  

What did the Committee recommend in regards to reporting and compliance obligations?

The Committee calls on the Government to consider requiring employers to collect data and report annually on 

• the number and type of discrimination and harassment complaints/grievances received and the outcome  
• the number of settlement agreements entered containing confidentiality, non-derogatory and similar clauses and the type of dispute they relate to

It also recommends the Government should require employers to appoint a senior manager at board level or similar to oversee anti-discrimination and harassment policies and the use of NDAs in discrimination and harassment cases.

What duty to prevent harassment and victimisation did the Committee propose?

The Committee repeats its recommendation that there should be a mandatory duty on employers to protect workers from harassment and victimisation. It also recommends the Government should consider widening the duty so employers have an obligation to prevent any form of unlawful discrimination or harassment. The Equalities and Human Rights Commission should be responsible for enforcement and employers should face substantial financial penalties. 

The full report is available here