Victims of abuse should not be gagged

The Government should legislate to control the misuse of non-disclosure agreements in the UK

The #Metoo movement exposed what we already knew to be a significant and shameful problem. Sexual harassment, consisting of unwanted behaviours, from sexual comments to touching, groping and sexual assault, is such an everyday occurrence that in many workplaces it is just seen as part of the culture.

For the past six months, the Women and Equalities Committee, which I chair, has been taking evidence on what more can be done to tackle this issue. This week, we published our findings in a report that identifies five key areas for government action. These include: introducing a new duty on employers to protect workers from harassment and victimisation in the workplace; requiring regulators to step up; making enforcement processes work better for employees; and collecting good data on the extent of the problem and how effectively it is being tackled.

Our report concluded that one of the major reforms required is a clean-up of the use of non-disclosure agreements (NDAS) in cases of workplace sexual harassment. These are contracts and settlement agreements with confidentiality, or “gagging”, clauses designed to silence those who have experienced sexual harassment at work, even when this may be unlawful.

Confidentiality can and does play an important role in helping more victims of sexual harassment to come forward, and that might include anonymity for victims and alleged perpetrators while allegations are properly investigated. But NDAS should not be used as a way to cover up sexual misconduct, leaving individuals intimidated and fearful of speaking out and perpetrators free to go on to harass others elsewhere.

Two recent high-profile cases show just why the use of NDAS needs to be addressed. In January, people were rightly shocked by the stories about the Presidents Club charity dinner, where women who were employed as hostesses were “groped, sexually harassed and propositioned” by guests. It was reported that these women were required to sign a five-page non-disclosure agreement about the event before starting work, without having a chance to read it or take legal advice on it.

Zelda Perkins, former assistant to the Hollywood producer Harvey Weinstein, resigned from her role at Miramax in 1998 when her complaint about sexual harassment was not resolved. She signed an NDA and told us that she was “unhappy with the entire process and the entire agreement”. That agreement placed restrictions on her speaking not only to friends, colleagues and family about her time at Miramax, but to medical practitioners, legal representatives and even the police. One of the most troubling aspects of the agreement was that she was not allowed to keep a copy of what she had signed, but had to go to a law firm’s office to view it.

These cases may sound extreme, but from the evidence we have received it is not uncommon for people, as a result of the way NDAS are written, to be confused or misled about who they can talk to regarding the facts of their case. The use of baffling legalese can leave people believing that they cannot report sexual harassment – which may be criminal – to the police or regulatory bodies, or speak to a lawyer about it. People may also fear that they will be imprisoned if they break the terms of an agreement.

While there is a place for NDAS in workplace sexual harassment cases, employers, legal advisers and others must not abuse their power and frighten workers into keeping quiet. The Government must ensure that the use of NDAS is better controlled. People who sign them need greater clarity on the limits and effect of confidentiality clauses.

Those who seek to use such agreements unethically to prevent or limit disclosures to the police, regulators and other appropriate bodies must face severe sanctions. We are recommending that the Government should legislate to require the use of standard, approved confidentiality clauses; widen the pool of individuals and organisations to whom protected disclosures can be made under whistle-blowing law; and make it an offence to use NDAS to prevent or limit the making of a protected disclosure or disclosure of a criminal offence. The ball is now in the Government’s court.