One of the issues arising from the #MeToo movement in the last 5 years was that confidential settlements of harassment complaints may have led to the unintended consequences of repeat offenders operating under the radar with other potential victims.
Confidentiality clauses cannot prevent the disclosure of information in all circumstances,
even if they claim to do so. An aspect of the new Respect @ Work changes will change the way a sexual harassment complaint in the workplace is resolved and documented.
The Guidelines on the Use of Confidentiality Clauses in the Resolution of Workplace Sexual Harassment Complaints directs that employers carefully consider their general and particular duties of care and the use of confidentiality clauses in any workplace sexual harassment settlement agreements.
- Consider the need for a confidentiality clause on a case-by-case basis.
- The scope and duration of the confidentiality clause should be as limited as possible.
- Confidentiality clauses should not prevent organisations from responding to systemic issues and providing a safer workplace.
- All clauses in a settlement agreement should be clear, fair, in plain English and, where necessary, translated and/or interpreted.
- The person who made the allegation should have access to independent support or advice to ensure they fully understand the meaning and impact of the settlement agreement, including any confidentiality clause.
- Negotiations about the terms of a settlement agreement should ensure so far as possible the wellbeing and safety of the person who made the allegation, and be trauma-informed, culturally sensitive and intersectional.