Minister vows to curb ‘unethical’ NDAS
Penny Mordaunt says Government will prevent misuse, as campaigners call for faster action
THE Government will take all “necessary steps” to prevent employers using non-disclosure agreements (NDAS) to cover up allegations of “disgusting and illegal” behaviour, the minister for women said last night.
Penny Mordaunt said NDAS were being used to “intimidate victims into silence” and vowed to act in the wake of the Sir Philip Green case.
Last year Theresa May pledged to end the “unethical” use of NDAS and laws could now be changed to force employers to explain workers’ rights to them if they are asked to sign NDAS.
Ms Mordaunt told The Daily Telegraph: “Sexual harassment at work is illegal, yet this disgusting behaviour is something that many women still experience today. It is clearly unacceptable that non-disclosure agreements have been used to hide workplace harassment or intimidate victims into silence, and we will take the necessary steps to stop this happening.”
Mrs May has promised to improve the way NDAS are regulated to make it “absolutely explicit” when they cannot be used, but a promised consultation on how to tighten regulations has still not happened.
Rebecca Hilsenrath, the chief executive of the Equality and Human Rights Commission, said: “We need more action now. The use of NDAS exposes an additional, sinister aspect to sexual harassment at work.
“We have repeatedly said that they should only ever be used at the victim’s request to avoid hiding harassment, protecting perpetrators and ultimately silencing victims. Victims need to feel empowered to come forward and we need a mandatory duty on employers to prevent sexual harassment, if we are really going to fundamentally change workplace cultures.”
An injunction obtained by Sir Philip to prevent The Telegraph naming him as the businessman who had used NDAS to hide allegations about his behaviour was lifted yesterday by the High Court. But in a statement released after the ruling, Sir Philip and Arcadia warned those who had signed NDAS that they had “ongoing obligations to honour those agreements” and could face legal action if they spoke to The Telegraph or consented to details of the allegations being revealed.
Maria Miller, chairman of the women’s and equalities select committee, writing in The Telegraph, says: “The Philip Green case shows how broken the current system is when it comes to NDAS, protecting the powerful and silencing victims. Employers and lawyers need to hear a strong message from Government that this has to change.”
The committee recommended that the Government reform NDAS to ensure they are not used unethically and to make it an offence to use NDAS to try to prevent or limit whistle-blowing.
In its response, the Government agreed that NDAS “require better regulation and a clearer explanation of the rights that a worker cannot abrogate by signing one”. Olga Fitzroy, of Pregnant Then Screwed, the women’s rights group, said research showed that 91 per cent of people felt that they had no choice over signing an NDA, and 70 per cent felt it had a long-term impact on their mental health.
“Thanks to whistle-blowers and the Metoo era, we have finally started to uncover the extent and damage, but more needs to be done,” she said. “We would like to see the Government act faster on monitoring the use of NDAS, and we are speaking to a number of MPS about how damaging they are.”
Paola Diana, a Metoo campaigner, said: “I’m not only concerned about those who signed NDAS, I’m also concerned about potential new victims.”
Mark Stephens, who represents Zelda Perkins, who broke a 19-year-old NDA to speak out about her harassment by Harvey Weinstein, and is a partner with Howard Kennedy, said: “What we have is a situation where you’ve got a rich and powerful man who has effectively silenced women with an NDA and they are not in a financial position to engage in a legal dispute with him – a man who’s capable of throwing away £3million on a court case on the offchance that he might be able to salvage something of his reputation.
“We have this onerous situation and I think what the judiciary have failed to comprehend is that in these NDA cases invariably the victims just want to get out of the environment, they want it to stop. And so they’re prepared to sign almost anything to leave, it’s not a fair basis.”
Robert Buckland, the solicitor general, told The Telegraph: “Non-disclosure agreements must never be used as a gag to silence victims of abuse.”