NDAs in cases of workplace harassment or discrimination

NDAs in settlement agreements

In the UK non-disclosure agreements (‘NDAs‘) are commonly included in settlement agreements to resolve disputes about discrimination and harassment to avoid expensive litigation and adverse publicity.

The Employment Rights Bill will introduce changes that mean NDAs that prevent workers talking about allegations of harassment and discrimination will be void unless deemed an ‘excepted agreement’ otherwise known as ‘excepted NDA’. In the UK, secondary legislation will need to be introduced to define an excepted NDA and set out the necessary conditions to qualify as a lawful excepted NDA. It is anticipated that one such condition will be that a worker will need to request an excepted NDA.

Without a binding excepted NDA, employees may raise their concerns to the press, resulting in reputational risks for their employer and its brands. Repeated allegations of discrimination and harassment against an organisation may become an insidious drip, drip, drip of toxic bad news, harming an organisation’s brand, sales, recruitment and success. Who wants to work for an organisation that’s repeatedly publically shamed for poor culture in the press? Do customers begin to turn away? Do brand ambassadors elect to end their association?

The answer is investment in an expert led HR, legal and comms strategy to avoid or minimise harassment and discrimination events, to ensure your investigation and response to worker complaints is ‘beyond reproach’ by engaging independent specialists to investigate and training managers, a considered and strategic approach to determing if, when, and how without prejudice settlement discussions take place, and a media response plan for when allegations of harassment and discrimination hit the press.