Harassment in the workplace continues to be a topical issue. On Monday, in the latest high-profile sexual harassment case to reach the news, Ray Kelvin CBE, the founder and CEO of Ted Baker, resigned from his post following allegations that staff were subject to a culture of “forced hugs”.

The allegations came to the public’s attention when a petition to “end harassment at Ted Baker” gathered over 2000 signatures. The petition appealed to the company’s Board of Directors, asking them to “put an end to forced ‘hugging’ by the CEO” in light of the HR department’s failure to act on the allegations.

The case again highlights the importance of listening to staff complaints, and having effective HR processes in place to deal with allegations of harassment. Ted Baker’s external report into the allegations is expected to be completed by late spring or early summer, but is likely to include some serious recommendations for the company.

How companies deal with staff who leave having made such allegations also faces fresh scrutiny. Often, those who raise allegations enter into settlement agreements which contain confidentiality clauses. However, the use of these agreements has been criticised, especially in light of the Harvey Weinstein cases, in which allegations of criminal behaviour were silenced by the use of so-called “NDAs”. There is also concern that such clauses prevent employees from disclosing the details of the events to their doctor, counsellor or the police.

Against this background, the government has opened a consultation here in relation to the use of confidentiality clauses. It is seeking to put an end to the “unethical use of these agreements and encourage good practice from employers and lawyers”. Its proposals include:

• clarifying the law in this area so that confidentiality clauses cannot prevent people from speaking to the police and reporting a crime;
• requiring a written description of rights to be provided before individuals sign confidentially clauses (either in an employment contract or a settlement agreement); and
• extending the requirement for a worker to be independently advised when entering into a settlement agreement to ensure the advice covers the limits of any confidentiality clauses.

However, the consultation does not cover all of the recommendations which the Women and Equalities Select Committee made in its report into sexual harassment last year, and given the scope of the Committee’s current enquiry into NDAs in cases of harassment and discrimination more generally, it is likely that more recommendations will follow from the Committee.

The consultation ends on 29 April 2019 and we are inviting comments on the proposals from employers, so please do contact us with your comments and have your say before 29 April.

We have also prepared some “top tips” for employers managing sensitive internal investigations which is available here.

If you have any queries around this topic, and would like advice, please contact our employment team.

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