NDAS are the by-product, not the root cause, of abuse
Women were told: ‘You know how he is, so stay out of his way’ or ‘Boys will be boys’
Many of us spend more time at work in any given week than we do in our own homes or with our families. That’s why it’s vital that our working environments are safe and secure.
What we have learned from #Metoo and #Timesup is that millions of people have gone to work in fear.
Sexual harassment wreaks havoc on its victims, both psychologically and physically. It has no place in society.
In the workplace, it has a whole new sinister aspect, and this is about power – the inability of victims to walk away, the fact that perpetrators are often more senior colleagues and the imbalance of power between the employer and employee. Organisations use the force of the law to brush aside what has happened and sweep it under the carpet, prioritising their public image over the welfare of their staff.
One technique employers use is the non-disclosure agreement, or NDA. These are contractual agreements that limit what you can say, or who you can talk to. When used ethically these can legitimately protect trade secrets and an organisation’s ability to compete in the marketplace.
But in the hands of the unscrupulous, they silence victims, hide harassment and protect perpetrators.
When conducting research into workplace sexual harassment, we heard from almost 1,000 employees. The stories told by both men and women were horrifying. NDAS came up again and again, with people telling us that they felt silenced by their employers or that their silence was being bought to maintain the status quo.
And their circumstances – personal, professional and financial – are simply all too often insufficiently robust for them to be able to refuse.
One woman told how she was advised against taking her case any further as “no one wants to hire a trouble-maker”. She was paid to sign an NDA and the director involved remained on the board.
Other women were told, “You know how he is, just stay out of his way,” or “Boys will be boys.” A common dynamic for women was the threat of their careers being destroyed, or getting a reputation as being “difficult” if they spoke out against senior individuals. This is unacceptable.
Staff welfare must be paramount in any organisation and we at the EHRC have repeatedly called on the government to regulate the use of NDAS. Appropriate legislation is needed to ensure they are only ever used at the claimant’s request, to protect their well-being, and never to protect the corporate or reputational interests of an employer. Legislation aside, the onus for preventing and dealing with workplace sexual harassment needs to shift from victims to employers. Banning NDAS alone will not prevent workplace sexual harassment – they are a by-product of the issue, not the root cause. Employers need to change workplace cultures fundamentally through appropriate training, as well as through putting in place robust policies and procedures for reporting and handling instances of sexual harassment.
Along with the Women and Equalities Committee, we have called for a new mandatory duty for employers to instigate measures to prevent harassment in the workplace and we are developing a code of practice to support employers in doing this. Perhaps this will mean NDAS will never be needed to silence victims.
It is in employers’ best interests that their staff feel safe and are able to work in an environment that helps them achieve their full potential.
It’s time they stepped up, re-evaluated their priorities and put their employees first. They owe it to them. And it’s the right thing to do.