Gagging orders must not silence whistleblowers, says watchdog
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.