Non-disclosure agreements can't silence workplace harassment

Mail & Guardian

2 days ago

Graphic: John McCann
The use of non-disclosure agreements (NDAs) for harassment has sparked debate about whether such agreements protect organisations at the expense of complainants' rights.
Zelda Perkins, former personal assistant to American former film producer and convicted sex offender Harvey Weinstein, highlighted the plight of silenced employees by establishing the Can't Buy My Silence campaign in the UK to challenge the abuse of NDAs.
In response, the UK government announced measures prohibiting employers from using NDAs to silence aggrieved employees. The proposed reforms will prevent employers from including confidentiality clauses in settlement agreements where misconduct is alleged, thereby ensuring individuals are not legally bound to remain silent about their experiences.
Several jurisdictions have taken steps to restrict the misuse of NDAs in cases of workplace harassment and discrimination. In the US, various states have implemented anti-harassment laws regulating non-disclosure agreements, complemented by the national Speak Out Act, which bans pre-dispute NDAs. Similarly, Prince Edward Island in Canada enacted the Non-Disclosure Agreements Act in 2022, which prohibits NDAs designed to conceal allegations of harassment or discrimination, promoting transparency and protecting employees' rights to speak openly about abuse. These examples highlight a global trend towards greater accountability and the prioritisation of victims' rights over institutional secrecy.
South Africa also regularly deals with cases involving harassment, discrimination and sexual misconduct. The country has not yet enacted legislative reforms to tackle the specific misuse of NDAs but various legal principles and developments do provide protections in this space.
NDAs are generally enforceable under South African contract law, provided they are reasonable in scope and duration, and do not violate public policy.
The Labour Relations Act (LRA), the Employment Equity Act (EEA) and the Protected Disclosures Act (PDA) offer protection to employees who report harassment or discrimination.
Although the EEA does not expressly prohibit NDAs, any agreement that silences victims of harassment or discrimination arguably undermines the purpose of the Act. Section 6 prohibits unfair discrimination and harassment. Victims may not be prevented from reporting such conduct to the Commission for Conciliation, Mediation and Arbitration (CCMA), Labour Court or Equity Court. If an NDA prevents such reporting, it could be found to be contrary to public policy and therefore unenforceable.
The EEA also imposes a duty on employers to take steps to eliminate harassment. If an NDA is used to cover up harassment, rather than resolve it, the employer could remain liable, regardless of the existence of the agreement.
The Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace (Harassment Code), issued under the EEA, aims to eradicate all forms of workplace harassment. It provides a formal mechanism for reporting discrimination and harassment.
The code also holds employers vicariously liable for employees' conduct unless they can demonstrate that reasonable steps were taken to prevent and address such behaviour. These provisions arguably prohibit the use of NDAs to silence complainants or avoid accountability.
Section 2(3) of the PDA provides that any clause in a contract of employment or other agreement that seeks to exclude or waive rights under the Act is void. This includes agreements preventing the institution or continuation of proceedings under the PDA. This statutory override invalidates any NDA (or other contractual term) that seeks to silence whistleblowers.
Notably, the PDA defines 'disclosure' broadly as any disclosure of information about the conduct of an employer or employee, made by a person who reasonably believes that the information shows, among other things, unfair discrimination as contemplated in the EEA or the Promotion of Equality and Prevention of Unfair Discrimination Act.
Under section 8 of the Occupational Health and Safety Act, employers are obligated to provide a working environment that is safe and without risk to employees' health. If employers rely on NDAs to conceal harassment, rather than address the underlying issues, they may fail to meet this obligation. As a result, contracts attempting to circumvent these responsibilities may be rendered unenforceable.
While victim-initiated settlements may be permissible, they do not negate an employer's broader duty to comply with statutory obligations and actively promote a harassment-free workplace.
The LRA protects employees against victimisation and unfair labour practices. In harassment cases, NDAs can be used to prevent or restrict victims from disclosing their experiences. This undermines the right to a safe and fair workplace and may foster impunity. The LRA ensures employees can challenge such practices, thereby safeguarding their rights and supporting a culture of accountability.
Sections 187(1)(d) and (h) of the LRA classify dismissals as automatically unfair if they are linked to the enforcement of workplace rights or if silence leads to constructive dismissal. In the context of NDAs, such agreements can pressure employees into remaining silent about harassment or other misconduct. If the terms of an NDA create an intolerable working environment that results in resignation, it can constitute constructive dismissal.
While South Africa's legal framework theoretically protects harassment victims from NDA misuse, practical enforcement remains a problem. The existing legislation provides comprehensive protections that can render specific anti-NDA reforms unnecessary. But employers and legal practitioners must understand that NDAs cannot lawfully silence harassment complaints and victims should be aware of their rights under various laws. The focus should be on strengthening enforcement mechanisms rather than creating new laws.
Employers must carefully review settlement agreements to ensure compliance with statutory obligations under the relevant legislation. Any clauses that prevent employees from reporting harassment or discrimination to regulatory bodies such as the CCMA, Labour Court or Equity Court, should be avoided, because these are likely to be deemed unenforceable and contrary to public policy.
Instead, employers should focus on protecting legitimate business interests, such as confidential commercial information, trade secrets or preventing disparagement, while ensuring that such provisions do not silence the core harassment complaint or restrict employees' legal recourse.
Crucially, employers must maintain robust harassment prevention and response procedures, because NDAs cannot absolve them of their statutory duty to provide a safe working environment or eliminate workplace harassment.
Dhevarsha Ramjettan is a partner and Kanyiso Kezile a trainee attorney at Webber Wentzel.