The amendment, expected to become law later this year, will render any confidentiality agreements void if they seek to prevent employees/workers from speaking about allegations of harassment, including sexual harassment and/or discrimination.

If enacted, this change will mean:

• Victims of sexual harassment and/or discrimination can speak openly about their experiences, regardless of any NDA they may have signed.
  
  
• Witnesses, including colleagues and employers, can publicly support victims or report misconduct without fear of legal repercussions.
  
  
• Confidentiality clauses attempting to suppress these disclosures will have no legal standing. 
  

An NDA is a legally binding document that protects confidential information between two parties. They are designed to protect sensitive or proprietary information, such as intellectual property or commercial interests. However, they have increasingly been used to silence individuals who have experienced unacceptable treatment in the workplace. This misuse has been particularly widespread in lower-paid, insecure sectors such as retail, hospitality, and accommodation, often accompanied by non-disparagement clauses.

The proposed legal changes aim to bring the UK into line with jurisdictions such as the Republic of Ireland, the United States, and several Canadian provinces, where NDAs can no longer be used to suppress disclosures relating to sexual harassment or discrimination.

Research carried out by Unite the Union sheds light on the scale of the issue. A survey of over 6,000 female members revealed the following:

• 25% reported being sexually assaulted at work or while commuting.
   
  
• 43% had experienced inappropriate touching.
   
  
• Over 3,000 reported being subjected to sexually offensive jokes, unwanted flirting, or inappropriate remarks.
   
  
• 28% had been shown or sent pornographic images by a colleague, manager, or third party.
   
  
• 8% had been victims of sexual coercion in the workplace.
  

Although many of the reported incidents involved members of the public, such as passengers or patients, 3% identified a manager and 6% a colleague as the perpetrator of sexual assault.

While the proposed ban on NDAs in cases of workplace harassment or discrimination forms part of an amendment to the Employment Rights Bill, applicable only to England, Wales, and Scotland, this development may nonetheless prompt increased scrutiny and discussion around the use of NDAs in Northern Ireland.

Employers should get ahead of this matter, ensuring they have all relevant policies and procedures in place, including Dignity at Work; Grievance and Equal Opportunities policy and provide training (and refresher training where appropriate) to staff teaching how they should conduct themselves in the workplace. In the absence of same, an employer may be vicarious liable for their employees actions, potentially resulting in costly legal action and settlements.

Edwards Solicitors
Tel: 02890 321863
www.edwardssolicitors.com