Clarification of NDAS ‘doesn’t go far enough’
VICTIMS of sexual discrimination at work who are forced to sign gagging orders will not be protected under new plans announced by the Government, a senior Conservative MP has warned.
Maria Miller, the chairman of the work and equalities select committee, said actions proposed by ministers were at risk of “not going far enough” if they “simply reiterate the existing law” and failed to tackle non-disclosure agreements (NDAS) being used to cover up discrimination.
The Government will today launch a consultation intended to “clarify the law” around NDAS.
The move comes after an investigation by The Daily Telegraph disclosed how Sir Philip Green, the retail tycoon, used NDAS to silence and pay off at least five members of staff who accused him of sexual harassment, racism and bullying. Employees will be given a “clear, written description of rights” before they sign gagging orders and will be told they can still report criminal matters to the police or whistleblow on matters in the public interest.
The proposals include “enshrining in law for the first time that individuals cannot be prevented from reporting crimes, harassment or discrimination to the police”, to improve protection for victims of sexual assault, physical threats and racism. However, the plans would not cover sexual harassment at work, which is a civil offence, as are age and maternity discrimination.
“It’s not right for this reform to simply restate what’s already the law,” Ms Miller said. “It would not be going far enough if it simply reiterated the existing law and failed to take account of NDAS used to cover up discrimination.” Currently, any NDA clause designed
to prevent an employee from whistleblowing or reporting allegations to the police would already be void under the Employment Rights Act.
The ongoing inquiry into NDAS by the women and equalities committee has “collected evidence that suggests essential reform may need to go far further than this”, Ms Miller said.
While the proposals are a “first step in the right direction”, the MP said more will need to be done.
“It is already possible to report things that are criminal to the police. The misuse of NDAS does not only relate to criminal wrongdoing, but also to conceal unlawful discrimination. It would be wrong to allow any reform to not tackle this issue.”
Announcing the consultation, Theresa May, the Prime Minister, said: “Sexual harassment is against the law and discrimination of any kind will not be tolerated – in the home, the workplace or in public.
“Over the past couple of years, we have seen brave individuals breaking silence on such behaviour, but too many are still facing the unethical misuse of non-disclosure agreements by their employers.
“We’re sending a clear message that a change in the law is needed to ensure workers are able to come forward, be aware of their rights and receive the advice they need before signing up to them.”
Yesterday, Geoffrey Robertson QC, who called for a change in the law after The Telegraph reported allegations made against Sir Philip Green, said the proposed changes alone would not go far enough.
“They only allow complaints to the police, who will not act on most of them because casual sexism and racism may not always amount to a criminal offence,” he said.
“You cannot prosecute a culture. Any reform must be about freedom of speech – the right of an employee to reveal disgusting behaviour without being injuncted, ie gagged, or sued for damages.”