Employee Harassment Gagging Orders to be Outlawed

Employment gagging orders that bar employees from reporting workplace sexual harassment to the police are set to be outlawed, as the government prepares new legislation to clamp down on sexual and domestic abuse.

Under proposals included in the draft Domestic Abuse Bill, companies will no longer be able to enforce non-disclosure agreements (NDAs) to silence employees in cases where their allegations of sexual assault amount to a crime.

Criminal instances of sexual assault unable to be obscured by an NDA would range from unsolicited touching to rape. Employers could also face a new legal duty to protect their staff from unreasonable behaviour of a sexual nature at work, ranging from lewd comments to physical assault. In addition, a new national database will be set up enabling employees to report complaints of workplace sexual harassment – including both verbal and physical assaults – more efficiently.

The database will equip policymakers and regulators to both address and monitor the scope of the problem of workplace sexual abuse in the UK.

MPs criticise professional regulators’ “lack of urgency”

The widespread corporate practice of having employees sign NDAs has come under fire in recent months as media attention underlines the frequent use of such contracts to cover up instances of sexual abuse at work and prevent victims from seeking justice.

The legal contracts are often used to bind employees to stay silent about workplace sexual misconduct in exchange for financial settlements. In March, Zelda Perkins – the former London assistant of alleged rapist and sexual abuser Harvey Weinstein – told MPs that being subject to an NDA had dissuaded her from discussing his alleged abuse with police or her therapist for over twenty years.

The Weinstein Company announced plans that month to stop using NDAs to address sexual misconduct, acknowledging that Mr. Weinstein had “used non-disclosure agreements as a secret weapon to silence his accusers.”

The move for legislative reform to address such bars to criminal justice for sexual assault victims comes after Parliament’s women and equalities committee advised the government to “step in” following a failure to act from professional regulators.

Earlier this year, the committee asked ten professional regulatory bodies and inspectorates including the Bar Standards Board and Ofsted to explain how they were working to tackle sexual harassment.

Committee chair Maria Miller termed the “lack of focus and urgency” in several bodies’ responses “very concerning” and concluded that legislative reform was necessary to “force these bodies to take sexual harassment seriously.”

Campaigners say reform must cover all abuse offences

Some industries have been quicker than others to respond to Parliamentary criticism of the misuse of NDAs in handling claims of sexual misconduct.

The women and equalities committee recognised “progress…in the legal profession and in financial service” whilst noting that other sectors such as “policing and healthcare” had been particularly disappointing in their responses.

The Solicitors Regulation Authority instructed law firms earlier this year against the use of gagging orders, explaining that the contracts can obstruct the reporting of professional misconduct. Campaigners meanwhile have welcomed the plans for law reform to force all industries to abandon the practice.

Some however fear that the reforms may not go far enough, urging the government to ensure that new legislation outlaws the use of NDAs to obstruct reporting of any form of personal abuse at work.

Voice4Victims campaigner Harry Fletcher said the change was “welcome” but held that “the government needs to be more explicit and explain what category of offences this covers.”

“It is important that anyone who is the victim of sexual, physical or psychological abuse cannot be bought off by an employer and can have the confidence to come forward and report the abuse,” Fletcher added.

While the government has yet to respond to these concerns, an inside source has hinted that the reforms will be wide-ranging, telling news outlets that the “intention” of the policy is “to stop NDAs being used… in cases where a potential crime has been committed.”

Employment law advice for businesses and organisations

Our employment lawyers provide advice on the employment aspects of all major business decisions including policies and contracts, employer obligations, TUPE, settlement discussions and agreements and workplace dispute resolution and mediation. For advice, please contact a member of the team on 03456 381381 or email employment@ibblaw.co.uk.