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Sexual harassment and outlawing Non-Disclosure Agreements in the workplace

Posted on 12th November 2019

What is Sexual Harassment?

The Equality Act 2010 defines sexual harassment as unwanted conduct of a sexual nature which has the purpose or effect of violating an employee’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment.

The legislation does not define ‘unwanted conduct’ but case law has determined that the following can amount to sexual harassment under the Act: sexual comments or jokes, physical actions, asking questions about sex life or offensive jokes, sending explicit emails or displaying pornographic images. The conduct may be conduct over a long period of time or can be a one-off incident.

The purposely wide definition under the Act enables the employee’s own perception of how they have been treated will be a key determining factor. The Tribunal will also consider other circumstances of the case and whether it is reasonable for the conduct to have had the effect that the Claimant purport.

Non-Disclosure Agreements in the workplace

Government Ministers have recently promised to outlaw Non-Disclosure Agreements (‘NDAs’).NDA’s are often used when an employment relationship comes to an end, and in the employment context, are referred to as settlement agreements. Such agreements almost always seek to silence the employee, and prevent her from making any statements about the circumstances of her termination or from making any adverse comments about the employer. In circumstances were an employee is sexually harassed, an NDA would prevent her from talking about her experience to anyone, other than a limited individuals, such as her lawyer. Silencing victims of harassment, often means that the problem (the harasser) is not dealt with and is free to repeat his behaviour.

The government’s proposal follows on from the MP inquiry into Sir Philip Green paying off multiple employee allegations of sexual and racial harassment, which launched last November, as well as pressure from the Women and Equalities Committee.

There is a recognition that the use of NDAs to prevent victims of discrimination or harassment from asserting their rights is ‘unacceptable’, the Government has pushed forward plans to legislate in the area to clarify what such agreements can cover.

Government has also agreed to consider other changes in order to make employment rights more accessible, including reviewing Employment Tribunal time limits (which currently, for most cases are t three months less one after employment has terminated/harassment took place). They will also consider the possibility of making the provision of a basic reference a mandatory aspect of the employment relationship; so people who do experience harassment are not deterred from bringing a case for fear of future ramifications negatively affecting their career.

Changes are incrementally developing in the private sphere too. Last year, following suit from Microsoft and Uber, Google announced it would end its controversial use of a “forced arbitration” under which employees were contractually obliged to use the company’s internal procedures for dispute, rather than access the courts.

High profile case law, like that of Nathalie Abildgaard’s £270,000 harassment claim against investment giant, IMF, have also sparked a change in companies’ monitoring and tolerance of workplace harassment. Companies are seeking to protect themselves from possible litigation through contractual protections, an example of which can be seen from the increase in use of Consensual Relationship Agreements, requiring employees in a couple to sign off that the relationship is consensual; thereby protecting the employer from sexual harassment claims.

In a ‘Me Too’ era, where sexual harassment in the workplace appears to be rife (it was recently reported that 1 in 12 NHS staff are subjected to sexual harassment) the changes are to be welcomed. It appears that the Government, and business sector, are taking steps in the right direction to protect the rights of employees who suffer harassment.

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