The #MeToo campaign has exposed many occasions where Non Disclosure Agreements (NDAs) have been used as an attempt to prevent employees speaking out about sexual harassment in the workplace.
The difficulty for employers is there are no minimum requirements as to how they should act to prevent and deal with such behaviour in the first place. Employers will be liable for harassment or victimisation committed by its workers unless they can show that they took reasonable steps to prevent such behaviour but the question is what steps should they be taking?
Lauren Cope, a solicitor in the Employment team at Thursfields’ Solihull office has welcomed new guidance on sexual harassment and harassment at work from the Equality and Human Rights Commission.
The online document provides recommendations for employers and clear examples of what constitutes harassment.
The key points for employers in the guidance include the following:
- Ensure there are effective and well communicated policies in place which aim to prevent harassment and victimisation and consult with workers to develop them.
- Commit to reviewing those policies annually.
- Be aware of what is happening in the workplace and look for signs beyond informal and formal complaints, for example through informal one-to-one meetings.
- Consider introducing systems for workers to make complaints anonymously.
- Provide training which addresses each of these types of harassment so workers know what to do if they experience it.
- Assess risk and control measures, for example lack of diversity.
- Consider the continuing relationship between the complainant and (alleged) harasser where the (alleged) harasser is not dismissed.
Non Disclosure Agreements (NDAs)
The guide also considers the use of NDAs and reiterates that it is not lawful to use them to prevent workers from whistleblowing, reporting a criminal offence or complying with the law. Confidentiality clauses should be drafted carefully to ensure they do not inadvertently prevent complaints of harassment.
Anyone needing training in the workplace or guidance on the law surrounding harassment and victimisation can contact Lauren Cope at LCope@thursfields.co.uk or on 0121 796 4026.