As an employer, you may have to deal with the unfortunate event of sexual harassment or discrimination claims being raised. It's important you deal with all claims with the respect they deserve, and avoid a situation where you could be accused of silencing the victims.
The use of non disclosure agreements (NDAs) in discrimination and sexual harassment disputes is a difficult subject to manage.
In this guide, we'll discuss why this area is under scrutiny, what's being done about it, and actions you can take.
Why is the use of non-disclosure agreements in discrimination and sexual harassment disputes under scrutiny?
The use of non disclosure agreements (NDAs) in sexual harassment, sexual misconduct and discrimination cases has come under increased scrutiny. Especially after many brave have shared their experiences in the hope of justice.
NDAs should never be used to silence victims of harassment or discrimination, there is a growing public awareness of this happening.
What is the on NDAs and their use in sexual harassment disputes?
The report on Non-Disclosure Agreements (NDAs) and their use in discrimination and sexual harassment disputes (the Report)was produced by the Department of Children, Equality, Disability, Integration and Youth due to the growing concern regarding the potentially unethical use of NDAs in discrimination and sexual harassment disputes in Ireland and other jurisdictions.
These types of confidential agreements are notoriously difficult to research. The report was seen as an important step in learning more about this key equality issue. Its objective is to assist policy-makers about any future regulation of their use in the Irish context.
What did the Report say about the use of non disclosure agreements in discrimination and sexual harassment cases?
The following themes were explained throughout the report:
- There are many difficulties with NDAs that prevent signatories from discussing sexual harassment, discrimination or trauma.
- There is a potential for negative professional and personal impacts for the person after they sign NDAs.
- There are clear power imbalances between signatories.
- NDAs make it difficult for cases due to the inherent secrecy of the contracts.
The report describes that change is needed on this issue, but there are differing perspectives and opinions regarding the optimum legislative response.
Some practitioners are in favour of the effective prohibition of the use of NDAs in cases of sexual harassment or discrimination. However, some still see them as a key tool in the ethical resolution of disputes. As well as having a worry of unintended consequences if they were to be banned.
What is the Employment Equality (Amendment) (Non-Disclosure Agreements) Bill 2021 (the Bill)?
The Bill was designed to regulate the use of NDAs in cases of sexual harassment or discrimination.
It was intended to limit the ability of an employer to enter into an NDA with an employee following allegations of sexual harassment or unlawful discrimination.
How can NDAs be enforceable in discrimination or sexual harassment disputes?
The Bill proposes setting out statutory requirements must be met in order for an NDA to be valid and enforceable.
For example:
- The NDA must be the wish of the employee.
- The employee must have been offered independent legal advice, at the expense of the employer.
- The NDA doesn't adversely affect the health & safety of a third party.
- The NDA must have a time limit, and be written in plain English.
What should employers do?
As an employer, there are actions you can take to ensure you're dealing with the issue of harassment and discrimination correctly. Such as:
- Ensure your policies around dignity and respect and standards of behaviour are properly communicated to all staff.
- Advise the employee to seek legal advice before entering into a settlement agreement.
- Ensure the employee understands all the implications of entering into the agreement before doing so.
Get expert advice on non-disclosure agreements from Peninsula
You may have to deal with the unfortunate event of sexual harassment or discrimination claims being raised against employees or senior staff. You must deal with all claims with the respect they deserve..
The use of non disclosure agreements (NDAs) in discrimination and sexual harassment disputes is a difficult subject to manage.
Peninsula offers 24/7 HR advice which is available 365 days a year. Want to find out more? Contact us on 0818 923923and book a free consultation with one of our HR consultants.
