A MOVE by the UK government to ban non-disclosure agreements in sexual harassment and discrimination cases has triggered strong support – and fresh pressure – for Jersey to follow suit.
The proposed changes, announced this week and expected to become law later this year, would stop UK employers from using legal agreements to prevent staff from speaking out about harassment or discrimination at work.
The aim is to give workers better protection by removing a tool often used in settlement agreements to shield companies from reputational damage.
Kate Wright, chief executive of a domestic abuse charity and HR consultant by background, said the UK’s decision was “huge from an employment law perspective”.
She added that it could have a “positive trickle-down effect” in Jersey, especially among local firms with UK offices.
“By losing the protection of an NDA – the ability to silence a victim of sexual harassment – employers in the UK will need to take a much more robust approach to instances of sexual harassment and in shifting unethical cultures,” she wrote in a social media post yesterday.
“It will no longer be possible to brush sexual harassment under the carpet, which by doing so effectively condones and enables perpetrators to continue demonstrating awful and hugely damaging (sometimes criminal) behaviours in the workplace.”
Speaking to the JEP, Ms Wright said that Jersey should consider a similar change and that employers should not wait for law reform before reviewing their internal processes.
The FREEDA chief executive and Diversity Network co-founder said: “A safe workplace is a basic right for all employees. But if this isn’t enough motivation for employers to tackle this unhealthy culture of silence created by our reliance on NDAs, it’s also well proven that good business ethics and modern people practices lead to improved performance and profits.”
The UK’s plan to ban NDA agreements was also backed by the Jersey Community Relations Trust – a charitable organisation offering guidance to individuals who believe they have been discriminated against.
Kaye Nicholson, a trustee of the organisation and chief executive of equality charity Liberate, described it as a “positive move”.
She added: “We would like to see consideration given to a similarly explicit decision locally to ban NDAs for all organisations who might use them in discrimination and harassment cases.
“It is a vital step to protect victims of such harassment and empower people to speak out against misconduct and discrimination.”
Alexandra Ruddy, Chair of the Institute of Directors Jersey, also welcomed the UK’s move and said a similar approach in Jersey would support safer and more transparent work environments in cases of sexual harassment and discrimination.
She said: “We recognise the serious harm caused when NDAs are misused to silence victims and conceal misconduct. Ethical leadership and accountability are cornerstones of good governance, and directors have a duty to uphold these principles. “
However, Ms Ruddy warned against removing NDAs entirely and said legitimate uses remain, including the protection of commercially sensitive information and where individuals choose confidentiality.
“This is still an issue where education is paramount to prevent unwelcome workplace behaviours,” she said.
Anna Norton, Chair of the Jersey Chamber of Commerce Employment and Skills Committee, said the UK decision is likely to influence business practice in the Island – even if Jersey is not legally bound to follow.
“The UK’s move to prohibit the use of NDAs to silence victims of sexual harassment or discrimination is a significant step in promoting transparency and accountability,” she said.
“We are sure that this UK reform will spark a wider conversation about ethical practice in the use of settlement agreements, both in the UK and here in Jersey.”
Employment law specialist Simon Nash, who is managing director of Law At Work, said the use of NDAs to suppress complaints has been common in Jersey.
“In Jersey, as in the UK, NDAs have been widely used by employers to cover up issues relating to unethical conduct, such as harassment, victimisation and bullying.”
He described this as a “short-sighted move” and said it often prevents serious issues from being dealt with properly.
Mr Nash said: “What actually happens is the NDA ends up preventing the underlying issues from being thoroughly dealt with. The best employers, far from wanting to deny or hide any wrongdoing, seek to learn and improve, to make the workplace better for everyone.”
The employment law specialist told the JEP he works with boards of business who want to be “mature enough to be open about times they have not lived up to their best ideals” and use that process to make lasting improvements.
He said: “This takes leadership. And while genuine leadership is rare, those businesses who do go on the journey towards leadership find that clients and colleagues recognise the difference – and that shows up in business results too.”
While many in Jersey have told the JEP they support the UK’s direction, others have warned against an outright ban.
Huw Thomas, a partner at law firm Carey Olsen, said the issue is not straightforward – and that some employees actively want confidentiality in order to move on from their experience.
“A lot of individual complainants actually want silence. They don’t want things publicised, particularly if they’re worried for their future careers,” he said.
“So a lot of the time, employees are the ones seeking what you can loosely term as a non-disclosure agreement, and it’s questionable whether they would’ve come forward in the first place without that.”
The employment lawyer added: “Blanket bans might lead to completely counterintuitive outcomes. People might be less willing to complain and come forward if they think that there’s no way that things will be kept quiet.”
“With most of these things, it sounds fantastic in principle, and it kind of is, but it’s a lot more complicated than that.”
