Kelly Tolhurst:
The Government is making sure that these agreements can’t stop people coming forward as victims of crime
Recent revelations that in a small minority of cases non-disclosure agreements (NDAS), or “gagging clauses” as they are often referred to, are being used to silence women who it is alleged have been sexually harassed or discriminated against in the workplace are shocking. It horrifies me that some bosses feel they can abuse their position to behave in this way and feel they can get away with it. These attitudes are unacceptable and have absolutely no place in our society.
The Government is acting on this issue. We are introducing measures to protect people from the misuse of NDAS, and ensure that individuals who agree to them fully understand their rights. This includes enshrining in law that signing an NDA cannot prevent people from reporting activity to the police if they think they have been the victim of a crime.
The vast majority of businesses use these agreements legitimately – for example to prevent employees disclosing confidential information such as commercially sensitive details about a company. Settlement Agreements are often used to help resolve workplace disputes without the need to escalate matters to an employment tribunal.
However, some people are being forced to sign NDAS and settlement agreements to cover up potential criminal activity, such as sexual assault, physical threats and racism. These people are then afraid to report an incident or speak out about their experiences, potentially leaving others exposed to similar situations.
The Women and Equalities Committee’s recent inquiry into NDAS saw brave victims give evidence to Parliament about the misuse of these legal agreements. Witnesses recounted how they felt they had no choice but to sign an NDA and feared that if they broke the agreement they could go to prison.
While signing a confidentiality clause is often a normal part of accepting a role in a company, it is important that people know they still have rights in these situations. Signing one does not take away an individual’s employment rights. For example, a confidentiality clause cannot prevent someone taking a matter to an employment tribunal. Also, employees who report wrongdoing in the workplace can seek compensation if they are dismissed by their employer or suffer financial losses. Before signing any document, individuals should seek independent legal advice on what they are signing.
Likewise, an NDA can never remove a worker’s rights to whistleblow. Employment laws protect whistleblowers from dismissal or detriment when they report information which they reasonably believe is in the public interest and which shows past, present or likely future wrongdoing. An individual who has signed an NDA or confidentiality agreement is protected if they “blow the whistle” to an employer, an MP, a legal adviser or an agreed person or organisation included on the official whistleblowing list.
For a settlement agreement to be valid and enforceable, the employee must receive independent advice, for example from a lawyer or a trade union official, which covers their ability to pursue their rights at an employment tribunal.
As part of our action in this area, we propose extending the legislation to ensure that workers also receive advice on the nature and limitations of any confidentiality clause and clarification on the disclosures a worker can make. Sexual harassment and discrimination in the workplace is appalling and there is no place or excuse for it. This Government is determined to create more equal and fairer workplaces through our modern industrial strategy. Other steps include encouraging the UK’S biggest companies to offer more board positions to women, requiring employers to publish gender pay gap data and proposing new measures to extend redundancy protection for pregnant women and new parents.
Our proposals to change the law around NDAS and confidentiality clauses are just one step of many we are taking to ensure the UK maintains its position as a leader in workers’ rights and equality.
Kelly Tolhurst is Parliamentary Under Secretary of State at the Department for Business