Sexual harassment in the workplace and the use and misuse of non disclosure agreements (NDAs) have been the subject of much debate, with the light shone on areas previously hidden from view. This reached its peak at the back end of the year with a court issuing an injunction preventing the Daily Telegraph from publishing details about “discreditable conduct” by an unnamed executive-they were subsequently named in Parliament.
It is likely that the impact of social and traditional media has been a greater driver for action by employers keen tominimise large scale reputational damage, than the threat of legal claims.
The Fawcett Society, the Equalities and Human Rights Commission and the Women and Equalities Committee have all made recommendations for reform to harassment laws, including a mandatory duty on employers to take reasonable steps to protect employees, a new code of practice on harassment and setting out best practice for the use of NDAs. The Solicitors Regulation Authority has also issued a “warning notice” to solicitors about the improper use of NDAs.
These recommendations are yet to be acted upon. In the meantime, it is clear that in deciding the enforceability of NDAs, courts will draw a distinction between a contract which settles a dispute and is in both parties’ interests and one which is unfairly imposed by an employer. As a general rule, NDAs should be freely entered into with the benefit of independent legal advice, and should not prevent victims from reporting misconduct to regulators or the police or from making disclosures that are protected by whistleblowing laws.