The advice follows findings from the Equality and Human Rights Commission (EHRC), released this morning, saying employers should be legally obliged to prevent harassment or victimisation after concluding that the problem had become “normalised”. The Commission further recommends companies should not be allowed to use non-disclosure agreements to cover up sexual harassment.

Commenting on the findings, Nick Evans, employment lawyer at law firm Fletcher Day, said courts already take a dim view of recruiters or clients trying to use non-disclosure agreements (NDAs), or gagging clauses as they are commonly known, to cover up sexual harassment allegations. 

“This focus on the use of NDAs in the recruitment sector has been expected since the outcry of the Presidents Club saga, which directly referenced the role of recruiters.”

Evans adds responsible recruiters will continue to do their utmost to protect their candidates and ensure they are only working with reputable clients. 

“Currently, there are legitimate reasons why a recruitment agency may use an NDA but we expect to see a full-scale review of their use in the industry, especially following these specific remarks by the EHRC. Further, outside of sexual harassment, in terms of widespread or systematic wrongdoing where disclosure is in the public interest, ‘whistleblower’ protection will override any NDA anyway.

“Currently, if you are a recruiter and a client requests a gagging clause for a candidate to sign, it is important to get a quick legal review of your position so that you are not complicit in anything untoward that may happen further down the line. Recruiters who routinely use NDAs should have them re-examined by an employment lawyer.”

Meanwhile Matthew Potter, partner at law firm Howes Percival, says recruiters may only know if their employer clients have entered into such arrangements with former or existing employees by raising that issue with them. 

“Of course an employer client may not disclose or accurately respond to any such questions.

“If candidates are being asked to enter into NDAs at the outset of an assignment or contract of employment, there may be good reason to protect client confidentiality but if it is to attempt to give carte blanche to an employer to cover the behaviour of their staff or clients’ misdemeanours, then certainly recruiters may wish to question whether they wish to trade with those businesses. 

“Recruiters should in any event consider a risk assessment for the candidate that they are placing, and indeed if they were to know that they were being exposed to dangerous or unsavoury conduct then they could be liable. Regardless of any NDA entered into, employees would still have fall back on the criminal law and also whistleblowing legislation but by that time the damage may have already been done.”

According to Sybille Steiner, partner solicitor at law firm Irwin Mitchell, recruiters should review their sexual harassment policies in light of the Commission’s findings.

“The EHRC has said that victims of sexual harassment at work need better protection and that the government should introduce legislation stopping employers from ignoring complaints to protect their reputation.

“One of the recommendations of the Commission is that employers should ensure that their sexual harassment policy explicitly addresses their obligations under the Equality Act 2010 in respect of workers supplied to them by third parties, ensure it is shared with organisations supplying staff and services, and that workers supplied are aware of the policy and how to report instances of sexual harassment.

“The EHRC further recommends that the UK government should introduce legislation making any contractual clause which prevents disclosure of future acts of discrimination, harassment or victimisation void.

“According to provisions in the Equality Act 2010 an NDA cannot prevent someone from blowing the whistle. However, the Commission notes that not all allegations of sexual harassment will constitute protected disclosures or criminal activity, and that the scope of the relevant section in the Equality Act 2010 that prohibits a contractual clause if it ‘constitutes, promotes or provides for’ unlawful treatment under the Equality Act 2010 is uncertain and has not had any effect on the use of confidentiality clause in practice.

“Employers and recruiters must review their sexual harassment policies and take all steps required to ensure that its workforce understands and complies with these policies. Addressing and preventing sexual harassment in the workplace is vital to create a safer workplace for all.”

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