Ministers accused of failing to take reform of NDAs seriously
Campaigners say the Government has promised action yet done nothing to stop abuse of gag clauses
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THE Government was last night accused of a “lacklustre” response to the controversy surrounding non-disclosure agreements amid fears any action will not go far enough.
As details emerged of how Sir Philip Green used payouts, some totalling more than £1million, to silence allegations of sexual harassment, racist abuse and bullying, there were calls for ministers to act now to stop the gagging clauses being abused.
Penny Mordaunt, the minister for women and equalities, last night insisted the Government “will not accept this abhorrent behaviour and will act to make sure that workplace rights are protected for everyone”.
However, campaigners say that they have been raising the issues surrounding abuse of these agreements for more than a year and, despite repeated promises of action, including from the Prime Minister herself, nothing has been done.
The need for new legislation was now said to be “urgent” after Mr Justice Warby lifted an injunction against The Telegraph at Sir Philip’s request but refused to provide protection for his alleged victims who have signed NDAs.
Zelda Perkins, a former assistant to Harvey Weinstein who broke her own NDA to detail allegations against the Hollywood mogul, said: “There isn’t any public interest in upholding these NDAs. What interest is there in upholding a contract which is preventing someone talking about potentially criminal behaviour?
“There is a public interest in a safe working place where people are not bullied, not racially abused, not sexually harassed. Until the Government and the justice system steps up, the problem is just going to be perpetu- ated.” An inquiry by the women and equalities committee last year recommended a crackdown on the use of the agreements in cases of sexual harassment and whistle-blowing.
In its response, the Government recognised that there needed to be better regulation of the agreements and a “clearer explanation” of workers’ rights in relation to them, but campaigners fear that this will not overhaul their usage.
Ministers announced that they would be holding a consultation, but it is yet to begin. In the mean time they have been widely criticised for a “wishy-washy” approach that does not go far enough quickly enough.
Ms Perkins, who gave evidence to the inquiry, said: “I know she is busy but I would be really interested to know what Theresa May has to say. She has kept saying she is taking it seriously but, from the lacklustre response to the original inquiry, I have huge doubts that they are going to do anything very much.
“Everybody is getting tied up in how to make NDAs better. I think we are barking up the wrong tree. You can’t have any sort of agreement that hides unlawful or gross behaviour.”
Kate Maltby, who accused Damian Green, the former Conservative Cabinet minister, of inappropriate behaviour, said: “The Telegraph’s campaign demonstrates that censorship of the press almost always acts in the interests of powerful men and against the interests of minorities.
“Despite the MeToo movement, thanks to the culture of NDAs the general public has so far only seen the tip of the iceberg when it comes to workplace harassment by powerful figures.
“If Penny Mordaunt is serious about looking into the misuse of NDAs, she may have to start close to home: it has been reported that senior Parliamentarians have made NDA settlements with staff.”
Maria Miller, the Tory MP for Basingstoke and chairman of the women and equalities committee, has pointed out that it has now been more than a year since she personally raised the issues with the Prime Minister.
“It is clear that NDA agreements are being used across the board and, in some instances, they are being used to cover-up criminal behaviour,” she said.
Sam Smethers, the Fawcett Society chief executive, added: “This is about power. The threat of speaking out may be the only power individual women have in these situations. And they may want to maintain confidentiality. But NDAs are being abused and can impose excessive restrictions. This has to change.”
Mr Justice Warby, lifting the injunction on Friday, noted that during an earlier hearing in The Telegraph’s legal battle with Sir Philip the Court of Appeal had taken “the view that, on the evidence before it, the NDAs had been entered into freely, with the benefit of legal advice, and that the claimants were likely to persuade the court at a trial that publication of the information in question should not be allowed”.
However, campaigners warned last night that in many cases there was an “inequality of arms” between employer and employee and the alleged victims often feel that they have no choice but to sign.
Mark Stephens, a partner at Howard Kennedy who represented Ms Perkins, said: “Just the fact you’ve got a lawyer doesn’t mean you’re not vulnerable, doesn’t mean that the terms are fair.”