Pressure on Government to make “Gagging orders” in workplace sexual harassment claims illegal

Following the high-profile scandals in Westminster and Hollywood, ministers are proposing to make it illegal for employers to use non-disclosure agreements (“NDAs”) or settlement agreements, otherwise known as “gagging orders”, in workplace sexual harassment claims where the assault amounts to criminal behaviour.

The Government is now under further pressure to regulate the use of these agreements after the Court of Appeal granted an injunction to stop the Daily Telegraph publishing an article concerning a “leading businessman” who used NDAs to silence employees who had accused him of sexual harassment.

It is feared these agreements are widely used by businesses to prevent employees from coming forward and reporting sexual harassment to the police. Whilst these agreements can have a legitimate role in protecting commercial confidentiality, they should not be used improperly to prevent an employee from reporting a crime. Financial compensation under these agreements should not be offered by employers as “hush money” to avoid reputational damage resulting from the alleged sexual harassment.

It is expected that ministers will also introduce a new legal duty for businesses to protect their employees from behaviour such as groping, vulgar jokes and assault. There have also been proposals for the introduction of a national database where victims can report their experience of workplace sexual harassment and expose the extent of the problem.

Businesses should be aware that the law will be changing and they will need to be more responsible for protecting their employees against workplace sexual harassment.

5 tips for employers to prevent and deal with sexual harassment claims:

1. Ensure you have an anti-harassment policy in place which outlines the steps to follow if an employee is being sexually harassed;

2. Train managers and staff on sexual harassment and the expected standards of behaviour at work;

3. Make sure that if an employee reports sexual harassment they can do so in confidence;

4. Handle complaints without bias and provide appropriate protection for employees who make complaints; and

5. Make the discussion of sexual harassment at work more open to encourage victims to come forward.