Last week, and in the wake of sexual harassment cases being raised by employees working in Parliament, the House of Commons Select Committee on Women and Equalities published its report on sexual harassment in the workplace. It made a number of recommendations for legislative reform. Many of these represent a positive step towards bolstering sexual harassment prevention strategies, including making it a duty for public sector employers to conduct risk assessments for sexual harassment and to take steps to mitigate any identifiable risks.
The Committee also recommends reforms to the process for bringing sexual harassment claims in the Employment Tribunal. These reforms include an extension of the time limit to bring a claim from three months to six months, with the clock paused whilst internal grievance processes are ongoing. The report recommends enabling the Employment Tribunal to make an award of punitive damages against an employer in sexual harassment cases so that employers will be required to pay the employee’s legal fees if the employer loses the case.
Other recommendations of the report relate to the use of Non-Disclosure Agreements (NDAs). Following allegations of sexual harassment by an employee, an employer might make an offer of settlement in exchange for the employee’s agreement not to disclose matters relating to the allegations. In this context, NDAs have often polarised opinion, representing for some the concealment and protection of (potentially criminal) behaviour, preventing perpetrators being brought to justice. For others, NDAs are a mechanism for achieving compensation and a resolution to what might otherwise be a protracted case before the Employment Tribunal.
The report of the Women and Equalities Committee suggests that the ability to use NDAs should be limited to ‘government approved’ standard clauses. What’s more, the report recommends making it a professional disciplinary offence for lawyers, and in some circumstances, a criminal offence for employers and lawyers, to propose the use of a non-government approved standard clause.
Whilst it is undoubtedly beneficial to ensure that the use of NDAs is regulated so as to ensure that employees’ rights are protected, it is important to note their usefulness in enabling complainants of sexual harassment to extricate themselves through settlement from a toxic workplace without having to pursue a complaint to a finding. NDAs are sometimes used unethically to silence employees, but in other situations the prospect of pursuing a complaint (either via an internal investigation or through litigation) can be daunting. This is particularly the case where, like in Parliament, there will often be a stark power imbalance between complainants and alleged harassers.