How firms should deal with serious allegations of workplace misconduct as NDAs return to headlines: Lisa Gillespie

Although Theresa May committed to reform seven years ago, it hasn't been implemented. Subsequent leaders Boris Johnson and Rishi Sunak also overlooked this commitment, and although draft legislation for banning the practice in higher education was announced, it was not enacted.

So why is this such a political hot potato?

The issue isn't NDAs themselves; when used properly, they can be effective.

The real problem is workplace cultures and leaders who not only tolerate unacceptable behaviours, but who use NDAs to keep them hidden.

Most scandals are ultimately uncovered, frequently by undercover or investigative journalists. Typically, concerns are raised internally but are not addressed; however, accountability is seldom established until the matter gains media attention. Examples include Harvey Weinstein, Mike Jeffries, and, more locally, Mohammed al Fayed.

Harassment complaints or whistleblowing are challenging for both victims and organisations. When malpractice is tolerated from the top, there is often no one independent or autonomous enough to address and tackle it. If the issue involves top leadership, few will risk their jobs to expose it and as a result, victims are often paid to remain silent.

Our experience indicates that rather than resorting to an NDA, organisations should consider outsourcing investigations when complex cases arise. This approach ensures that if the information becomes public, the organisation has taken the appropriate actions. Independent investigations offer numerous benefits: they prevent conflicts of interest for senior managers and HR, assure victims that their concerns are being addressed, provide clear directives on necessary actions – whether for an individual, a team, or the entire organisational culture – and ultimately, limit the fallout.

So often during these tricky situations, organisations forget that acting on the concerns, if founded, is the whole purpose of having procedures to tackle harassment. This year we also saw the law around employers’ obligation to protect workers from sexual harassment strengthen, so there’s just no getting away from it.

Early intervention can avoid heads rolling, costly settlements, and let’s face it… learning lessons is no longer a defence.

Further, if an organisation handles a complaint promptly and fairly, using an NDA should only be to protect sensitive information, and only if the complainant feels their concerns were properly addressed and agrees to confidentiality.

Therefore, whilst I absolutely agree that NDAs ought not to be misused, I’m concerned about the use of the word ‘ban’. I do think any legislation needs to be very finely balanced to ensure organisations can still use NDAs, but only in conjunction with taking appropriate action to tackle and remove whomever or caused the complaint.

Lisa Gillespie is Senior HR Consultant and Mediator at Han Law