Written submission from National Alliance of Women’s Organisations (NDA0050)
I am writing to add further comment to the Equality and Diversity Forum (EDF) response submitted previously which the National Alliance of Women’s Organisations (NAWO) endorsed.
NAWO – who we are
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Inquiry Response
In my experience in Human Resources Management since the 1980’s, non-disclosure agreements (NDAs) have been increasingly used in a range of employment disputes including dismissal, redundancy, pregnancy, maternity, discrimination and grievance claims including ET claims. The use of such agreements is now widespread and has become standard practice which I believe was never the intention. There have always been concerns that the practice of using agreements has allowed negative and inappropriate behaviours, in particular damaging and discriminatory behaviour, to flourish in the workplace. For this reason they are now surrounded by controversy.
Over time NDAs have become more sophisticated in their use and in some cases cover not only the terms of the settlement but the confidentiality agreement itself. It is my opinion that such agreements can be helpful to both parties but should not be used to camouflage or conceal unacceptable and inappropriate behaviour. I am well aware from my HR experience that some women consider their future career prospects would be damaged if they raised a claim and settled without a NDA. If the agreement has benefits for both parties, where a settlement allows those involved to settle a claim in both their interests and move on which may not be possible without an agreement, the outcome can be viewed as positive– the benefits outweigh any negativity. Where they prevent people, and women in particular from speaking out about unacceptable and unreasonable behaviour and are pressured into making the agreement, then they have a negative impact and are detrimental to building inclusive work place cultures where unacceptable behaviour does not have a place. Equally the individual is likely to experience stress and other health issues and find moving on difficult.
Tackling failings in organisational culture that allow harassment to occur in the workplace must be addressed and appropriate management action taken against perpetrators. The use of NDAs is likely to perpetuate unacceptable and inappropriate behaviours. To achieve long term cultural change employers must commit to tackling this issue as part of their core business strategy. The commitment must come from the top down - management boards, senior and middle management, front line supervisors and employees. Addressing an issue in a reactive way, i.e. responding to individual cases, does not lead to cultural change and healthy workplaces.
Employers have a responsibility to provide a safe workplace and ensure that their disciplinary and grievance policies are clear on what behaviour can constitute bullying and harassment; that there is a clear grievance process in place; and that training is provided for managers. The need for a grievance procedure is a requirement in law.
It is the implementation of the policy that makes the difference. The application of the procedure needs to be just and fair, with a proper investigation and support for the complainant during and outside of the process. Any grievance must be thoroughly and independently investigated. This would normally be an internal investigation but I can also see the need to look for external expertise where required. This is a path I have taken in the past. An opportunity to speak in confidence with a trained person in the organisation/union before formally making a complaint is very helpful, as is support during the process. A specific whistleblowing policy and pathway for reporting inappropriate behaviour may also be helpful as part of the strategy to change attitudes. Where evidence emerges that the individual has been harassed it should be addressed through the disciplinary procedure as soon as appropriate.
It is an absolute requirement for the procedures to be seen as credible for staff to be confident to raise an issue. The outcome must also be fair to all parties. The policy must be endorsed by the Senior Management Team/Board and managers must be trained in the organisations thinking and practice. Managers stepping up for the first time should receive in depth training/mentoring. Employees also need to understand an employer’s expectations around their behaviour. HR has a key role to play in combatting workplace harassment, but managers must also be held responsible and accountable for challenging and preventing unacceptable and inappropriate behaviour.
I believe there is a requirement for employers to have a transparent policy on the use of NDAs. I think it is debatable whether there should be a blanket ban on use of NDAs in discrimination and harassment cases. As discussed above there may be circumstances where their use can be justified. A woman may prefer to deal with their claim in this way for a variety of reasons. Their overriding purpose should be to protect confidential and/or commercially sensitive data.
Where they are used there should be a sign off procedure in place by an independent SMT/Board member and HR. I am assuming legal services would be involved to draw up any agreement. Senior Management Teams/Board of Directors should carry out reviews of the use of NDA’s on a regular basis. I think the use of NDAs should be monitored in the organisation – numbers and types to check the policy is being complied with - if not the Board needs to take action.
I also think a case can be made for NDAs to be reported to a body which would monitor their use and the number of agreements individual employers file. Employers would report use of NDAs to the body, which would have the jurisdiction to act and investigate if they felt the agreements were being used to hide inappropriate behaviour. Where organisations are investigated and misuse of NDAs is identified, part of the remedy should be a requirement for employers to put preventative measures in place including robust policies, procedures and training. The question that arises with external disclosure is whether the confidentiality is compromised. I think banning their use in certain circumstances may be an easier option.
With the recent developments on the sexual harassment landscape, including the President’s Club dinner and the #MeToo campaign, it is no longer realistic to think these sorts of issues can just be covered up or bought off as may have been the case in the past. Settlement agreements accompanied by non-disclosure agreements are very much in focus at the moment, and much thought will need to be given to the terms that are acceptable and how they can be introduced with minimum risk.
It is welcome the Government has finally committed to consulting on a huge range of measures designed to bring about change in this area, including the introduction of a new statutory code of practice – a new legal duty on employers to take their preventative responsibilities seriously and what steps they can take, limiting the use (or abuse) of non-disclosure agreements (NDAs); strengthening the law on third party harassment by clients, customers and others brought into the workplace; considering extending the time limits for bringing sexual harassment claims and also gathering data on the prevalence of sexual harassment at least every three years.
It is disappointing that it has taken recent developments to prompt this action. I think there is also an argument that these proposals should be taken a step further and a statutory duty placed on employers to prevent harassment. We have had other culture-changing legislation in recent years with disability and age, and the concept of sexual harassment has existed since the 1980s.
Whatever action is agreed at the end of the day, how impactful it is will depend on implementation. Robust employer and employee awareness/education campaign will be essential. Employers have a responsibility to engage with their employees on zero tolerance policies for unacceptable behaviour; and measures to take action against employers who fail to take responsibility for tackling discriminatory practice and sexual harassment need to be in place and enforceable. Employers need to be aware there are consequences if they fail to protect their staff. Clarifying and regulating the use of NDAs is a small piece of the jigsaw. It is cultural change that is needed that will eventually remove unwanted behaviour and create healthy workplaces, thereby rendering NDAs unnecessary in these circumstances. However, in the meantime I think there are measures that can be taken to manage and better regulate the use of NDAs.
A survey of UK employees by Acas and YouGov published in November 2018 (which I am sure you are aware of) found fewer than six in 10 (58 per cent) respondents felt their employer was currently doing enough to tackle sexual harassment, while the use of NDAs in settled harassment cases remains widespread. In conclusion undertaking a more detailed investigation into the patterns of harassment and their link to NDAs would be helpful.
January 2019