The ban on NDAs and the duty to prevent sexual harassment: a new era of accountability
You will no doubt be aware that employers have a legal duty to create safe, inclusive workplaces free from harassment and discrimination. The introduction of the duty to prevent sexual harassment in October 2024, coupled with the upcoming ban on non-disclosure agreements (NDAs) in discrimination and harassment cases, marks a significant shift in the way organisations are expected to address and prevent misconduct.
What is the duty to prevent sexual harassment?
The duty is designed to ensure employers take proactive steps to prevent sexual harassment in the workplace. This includes implementing robust policies, providing training, and fostering a culture where inappropriate behaviour is not tolerated. Employers must also have clear procedures for reporting and addressing incidents, ensuring that employees feel safe and supported when raising concerns. There are also obligations to thoroughly investigate allegations of sexual harassment and ensure that staff are trained on conducting trauma informed investigations.
The ban on NDAs
As part of the UK government’s efforts to tackle workplace harassment, a ban on the use of NDAs in cases of harassment and discrimination is being introduced as part of the Employment Rights Bill, although the date when this will become law is not yet known. Historically, NDAs have been used to silence the subjects of sexual harassment, preventing them from speaking out about their experiences. The spotlight has been shone on them because it has become clear that they have been used, and you could argue abused, by individuals such as Harvey Weinstein and Mohamed Al Fayed. The ban will ensure that individuals can share their stories without fear of legal repercussions, promoting transparency and accountability.
How these changes work together
The duty to prevent sexual harassment and the ban on NDAs reinforce each other by creating a framework that prioritises prevention, openness, and accountability. Employers can no longer rely on NDAs to shield inappropriate behaviour; instead, they must focus on building a workplace culture that actively prevents harassment. By addressing issues at their root, organisations can reduce the risk of incidents and foster trust among employees.
Practical steps for employers
- Evaluate current practices and identify risk areas.
- Review and implement effective policies that align with the duty to prevent sexual harassment and foster a zero-tolerance culture.
- Provide regular training on harassment prevention and reporting mechanisms.
- Ensure compliance to protect your organisation and workforce.
- Provide transparency in handling complaints and commit to learning from incidents.
Conclusion
The duty to prevent sexual harassment and the ban on NDAs represent a positive step forward in tackling workplace harassment. Employers must act now to ensure compliance and, more importantly, to create workplaces where everyone feels safe, respected, and valued.
