The Daily Telegraph

Gagging orders must not silence whistleblo­wers, says watchdog

- By Hayley Dixon

NON-DISCLOSURE agreements (NDAS) must not prevent employees bringing discrimina­tion cases against their employer, guidance from the equalities watchdog says.

Rebecca Hilsenrath, chief executive of the Equality and Human Rights Commission (ECHR), warned that “there are no more excuses” for using so-called gagging clauses to cover up harassment or discrimina­tion.

The commission has issued guidance for employers that warns legal contracts cannot be used to stop employees from talking about discrimina­tion or from whistleblo­wing or reporting a criminal offence.

It comes amid renewed focus on the controvers­ial contracts after a Daily Telegraph investigat­ion revealed how Sir Philip Green, the retail tycoon, used NDAS and payouts of up to £1 million to cover up allegation­s of sexual harassment and racial discrimina­tion.

The ECHR advice, issued yesterday, says that anyone signing an agreement must not feel under pressure to do so and must have time to read and fully understand it.

It adds that workers should never be asked to sign a gagging clause as part of their employment contract which would prevent a future discrimina­tion claim. Ms Hilsenrath said: “We’re calling time on NDAS that have been used to cover up discrimina­tion, harassment or victimisat­ion. There are no more excuses. Everyone should have the power to speak out about harassment and victimisat­ion. Nobody should be silenced.

“We all have the right to work in a safe environmen­t and a healthy workplace needs employers to step up and make sure those who work for them have a voice. Our guidance will help make that happen.”

NDAS should not be used to prevent workers discussing a discrimina­tory incident, unless the confidenti­ality has been requested by the victim, or “ever… stop employees from whistleblo­wing, reporting criminal activity or disclosing other informatio­n as required by law”, the guidance states. Employers should also monitor the use of confidenti­ality agreements and keep a central record so that they can identify any “systemic issues”.

The watchdog warned that bosses have a “duty to provide a safe working environmen­t”.

“To achieve this, it is important they create a culture in which workers feel able to discuss their experience­s and expose sexual harassment and all other forms of discrimina­tion,” it states.

“This in turn will help employers to identify patterns of discrimina­tion and tackle their root causes.

“If people do not feel they can speak up, this can mask systemic discrimina­tion and can have a detrimenta­l impact on a worker’s health and wellbeing and their ability to pursue their rights.”

There have been growing calls for the Government to take action on the misuse of NDAS and the latest guidance comes just months after a report by MPS recommende­d that they be banned in cases where they are used to silence victims.

The ECHR warns that the agreements are “part of the problem” of sexual harassment in the workplace and they are being used to “cover up the worst instances of discrimina­tion”.

Despite the fears about the effect that they are having, there is evidence that the agreements are “commonplac­e”, the watchdog warned.

 ??  ?? How The Daily Telegraph highlighte­d an NDAS scandal on Oct 24 2018
How The Daily Telegraph highlighte­d an NDAS scandal on Oct 24 2018

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