Since the first reports of accusations against Harvey Weinstein in the New York Times in 2017, a tidal wave of harassment claims swept the press and social media, trickling into global boardrooms and HR departments as more people felt empowered to speak out. Organisations have realised the movement is too big to simply brush under the carpet, forcing companies to tighten harassment and discrimination policies.
At a recent employment conference organised by Addleshaw Goddard in Scotland, a host of senior figures in HR and employment gathered to discuss the changes in employment law and the impact #MeToo has had on workplace culture.
Almost half of those surveyed agreed it has already had a positive influence on cultural change, but 78 per cent were worried an allegation of sexual misconduct within their organisation would present a serious risk of reputational damage.
This concern might lie behind a worrying trend. In an environment of heightened scrutiny on inappropriate workplace behaviour, there has been increased use of non-disclosure agreements (NDAs) in a sexual harassment context.
The UK Parliament’s Women & Equalities select committee has called for evidence of NDAs (aka ‘gagging’ or ‘confidentiality clauses’) being increasingly used in cases of sexual harassment and discrimination. This is against the backdrop of high-profile cases concerning the handling of sexual harassment and abuse allegations – involving complex, often controversial questions on topics such as the proper application of employer investigation procedures, as well as the lawful use of injunctions (interdicts in Scotland) preventing the publication of allegations by the media. Depending on the outcome, it could become much harder for employers or individuals accused of inappropriate behaviour to deal with complaints so discreetly.
It’s important for employers to consider the risks of such behaviour and prepare to face potential reputational damage if appropriate measures aren’t in place. Yet interestingly, a report by software company, NAVEX Global, found more than 44 per cent of UK business directors have never received training on dealing with workplace harassment.
The first step is to address workplace culture and ensure a zero-tolerance approach to inappropriate behaviour is communicated throughout the business. Labelling certain conduct as “harmless banter” or “political correctness gone mad” is not fostering a supportive environment where employees will feel comfortable to be open and honest.
Ensuring workplace policies and procedures are effective and robust is extremely important in the #MeToo climate. If the HR department or management team hasn’t already, it might be time to review policies such as bullying and harassment, dignity at work and equal opportunities.
The day-to-day practicalities of how policies are used shouldn’t be overlooked. How easy is it to raise a complaint or concern about inappropriate behaviour? Is there a clear pathway for an employee to discuss their worries? Is there a “crisis plan”, for example, to deal with Monday morning fall-out from the office party the Friday before?
Not only will these steps encourage the adoption of a healthy working environment, they can significantly assist in the event of a sexual harassment claim, bolstering the statutory defence known as “the reasonable steps”. This enables employers to highlight that all stages to prevent the behaviour were met and emphasise conduct of its kind won’t be condoned.
The reality is that it shouldn’t take a movement like #MeToo for companies to ensure employment policies are robust. The heightened awareness it has created, though, has meant organisations are making significant, meaningful policy and cultural changes to safeguard the rights of employees.
From an employment law perspective, the investigation into the increased use of NDAs in sexual harassment and bullying cases is an interesting development brought to light in the wake of #MeToo. However, it’s likely not the last enquiry we’ll see as a result of a movement which started in the spotlight of Hollywood and is now having a real impact across the globe.
Ann Frances Cooney is employment legal director at Addleshaw Goddard