Equality Watchdog Seeks Employment Law Reform

The Equality and Human Rights Commission (EHRC) is appealing to the government and a number of Britain’s leading companies to take “urgent action” against workplace harassment, recommending that confidentiality clauses in employment contracts be banned from silencing employees who face sexual harassment and other forms of mistreatment at work.

A new report from the equality watchdog says that these clauses are oppressing many victims of workplace harassment, particularly those in insecure work, junior roles or low paid positions, by leading them to fear that reporting such incidents will breach their contracts and cost them their jobs.

According to the report’s recommendations, non-disclosure agreements, or NDAs, should only be used by employers to protect victims’ identities, at their request.

The commission has called upon the government to pass new laws to void any contractual clause that prevents the disclosure of future acts of discrimination, harassment or victimisation. It also suggests that employees be surveyed every three years, in order to gain greater insight into the nature and scale of modern workplace sexual harassment.

Potential reforms would shift the burden of handling workplace instances of professional mistreatment from victimised employees onto companies themselves, by placing a new legal duty on employers to prevent such harassment, and implementing training for managers on how to address reported or observed problems.

The EHRC’s investigation into workplace harassment culture found that current policy and legislation has led to “corrosive cultures” which silence individuals and normalise sexual harassment.

Rebecca Hilsenrath, EHRC chief executive, said of the watchdog’s research:

"We set out to discover how sexual harassment at work is dealt with by employers and how it is experienced by individuals. What we found was truly shocking.”

Employers required to “prevent and resolve” harassment

Now, employers may be held more accountable for the culture at their workplaces, as the commission says that a shift of focus is necessary to alleviate the burden on individual victimised employees reporting mistreatment.

In a letter sent to many major UK employers, including those in the FTSE 100 and at ‘magic circle’ law firms, the EHRC underlined employers’ current legal duties towards employees and requested evidence of companies’ existing policies and strategy for tackling workplace harassment.

Hilsenrath stated: “There is a lack of consistent, effective action being taken by employers [about sexual harassment at work], and people's careers and mental and physical health have been damaged as a result”.

She added: "We need urgent action to turn the tables in British workplaces, shifting from the current culture of people risking their jobs and health in order to report harassment, to placing the onus on employers to prevent and resolve it.”

Fawcett Society chief executive Sam Smethers agreed with the report’s findings, saying:

"Sadly it's becoming increasingly clear not only that [workplace harassment is] an all too common experience but that far too many employers are turning a blind eye or even silencing victims of harassment."

No action taken by employers in half of all reported cases

The commission collected data from nearly 1,000 individuals and employers. It found that most commonly, the perpetrator of reported harassment was a senior colleague, while one in five cases involved harassment from a customer or client.

In around half of cases in which an incident was reported, no resulting action was taken by employers. In cases where action was taken, this was often detrimental for the person who reported the issue.

Neil Carberry of the Confederation of British Industry said that a statutory code of practice regarding non-disclosure agreements would be welcomed by employers, adding that the CBI “recommends that employers make it explicit that any confidentiality clauses do not prevent a person from whistleblowing on systematic abuses of power”.

A spokesperson for the government said:

“This government condemns all forms of workplace harassment, which is unlawful under the Equality Act. We are looking at all aspects of this wholly unacceptable behaviour, including the use of non-disclosure agreements.”

“We welcome the EHRC’s input into the debate about sexual harassment. We believe existing laws provide protection for both men and women in the working environment; however, we will continue to keep the operation of the legislation under review, to ensure that it works as intended.”

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