Employers considering waiving confidentiality agreements to assist the sexual harassment inquiry might be best served by weighing the legal and other implications on a case-by-case basis, a workplace lawyer says.

Sex Discrimination Commissioner Kate Jenkins recently called on employers to issue a limited waiver of their NDA terms, setting out specific wording that would enable parties to agreements to make confidential submissions to the workplace sexual harassment inquiry.

She noted that NDAs could otherwise prevent the inquiry from fully understanding employees' experience of harassment and the complaint process.

To date a total of 25 employers, including ANZ, Commonwealth Bank, EY, KPMG, BHP and Telstra, have issued limited waivers, out of 120 contacted by Jenkins.

Hall & Wilcox partner Fay Calderone told HR Daily that while she is very supportive of the inquiry, there is some potential for problems to arise in this area of waivers.

One is that employers can't generally waive the rights of another party, so an employee for example who makes a submission on the basis of a waiver could potentially be breaching the rights of another person, whether this is the alleged perpetrator of harassment, or a victim.

"Are there several parties bound by it? Were there other witnesses involved? Was it six victims and only one of them wants to speak to the Commission? The other victims might not be satisfied because they also have confidential terms that they weren't prepared to waive.

"It's a bit of a grey area; it's difficult to know how it's going to unfold and there's not a great deal of publicly available information about how these disclosures are progressing."

Submissions to the inquiry will be treated as confidential, its website states, but being a public hearing means the potential might exist for someone to make a Freedom of Information request if they believe any confidential information has been shared. "To the extent that a party thinks that there has been a breach, they could make that application and information would be available by virtue of that FOI request that may then evidence the breach.

"There is supposed to be anonymity around the individuals involved, but it depends on the nature and size of the organisation whether or not it would be possible to identify the individuals from a reputational point of view."

Calderone says most employers will want to avoid any suggestion of not being supportive of the inquiry, but this has to be balanced against their own risks and circumstances.

"That's why it may be better to consider these issues on a more limited or case-by-case basis to ensure that there aren't any inadvertent negative consequences, but at the same time demonstrate the willingness to consider them and the willingness to support the inquiry to the extent it is legally and commercially possible."

Otherwise, a limited waiver like that issued by EY would go some way to mitigating risks:

Where a formal complaint of sexual harassment has been made by a current or former Ernst & Young (EY) Partner, employee or contractor, EY agrees to a limited waiver of agreed confidentiality obligations, only for the purpose of submissions made to the National Inquiry conducted by the Australian Human Rights Commission as follows:

  • The limited waiver is only for the part of a complaint which relates to sexual harassment;
  • The limited waiver allows the person to disclose the nature of the complaint and the process which was followed by EY in handling the complaint including the outcome of the complaint;
  • The limited waiver does not allow the person to disclose which individuals were involved, including but not limited to the complainants, respondents, witnesses, EY or its affiliated entities, contractors to EY, any service line, office location, or other identifying information that would identify the parties; and
  • Any person making submissions that is covered by a relevant agreement, is encouraged to contact EY to assist in facilitating any request for consent from a third party named, affected or able to be identified by the submission.

Parties can make submissions to the inquiry until 28 February 2019.

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