Mrs May’s scrutiny of NDAS is most welcome

What more evidence is needed that non-disclosure agreements (NDAS) require significant, urgent reform? They came to prominence last year during the Harvey Weinstein scandal. The Hollywood producer had used contracts, which include confidentiality or “gagging” clauses, to silence women who have subsequently come forward to allege sexual harassment.

Now this newspaper has revealed that a businessman has used NDAS in at least five instances to pay employees substantial sums of money, to stop them accusing him of sexual harassment and racial abuse. That businessman has secured an injunction against The Telegraph, which is not party to the NDAS, to prevent his identification pending a trial of the matter in the new year.

There are legitimate commercial uses to NDAS. But there had been an assumption that they would no longer be enforced by courts insofar as they related to sexual harassment, given the Metoo movement and the number of women who had breached their agreements to expose wrongdoing. That assumption was clearly incorrect. Public opinion has shifted against NDAS: few now believe that people should be prevented from making public allegations of serious, sometimes criminal, misbehaviour, under threat of breach of contract. The law has not caught up.

The Commons’ women and equalities committee recommended earlier this year that NDAS should be reformed, so that they are not used unethically where sexual harassment is alleged. It found that whistle-blowing protections, which could feasibly permit the contracts to be breached, were too complicated to understand without expensive legal advice. Individuals felt “pressured” into signing them, and the committee feared they were being used “to silence victims of sexual harassment in the workplace and to prevent cases being brought into the public eye for fear of bad publicity”. NDAS also reduce the incentive for employers to investigate allegations of harassment and collect evidence against rogue managers.

It is therefore welcome that the Prime Minister has announced that the Government will bring forward reform measures for consultation, with the aim of making it “absolutely explicit to employees when an NDA does not apply or cannot be enforced”. Legislation cannot come too soon. Sexual harassment is a shameful scourge that has, for too long, been swept under the carpet. Victims should not be prevented from speaking out.