We must prohibit non-disclosure agreements (NDAs) from being routinely used to conceal abuse in the workplace
Non-disclosure agreements (NDAs) were designed to protect trade secrets like intellectual property, but over time they’ve been weaponised to silence employees too.
It is nearly four years since the hashtag #MeToo hit social media, where millions shared their stories to reveal the scale of sexual harassment and abuse experienced by women at work. Since then, #MeToo has been uttered more than 19 million times on Twitter.
The severity of the problem was unmistakeable when Twitter erupted in 2017, and again in 2018, when I chaired the Women & Equalities Select Committee inquiries into Sexual Harassment in the Workplace and the Use of Non-Disclosure Agreements in Discrimination Cases. These parliamentary inquiries didn’t just highlight the prevalence of sexual harassment in the workplace; another cruel culture was revealed: one where some employers diminish experiences of abuse, ignore allegations of wrongdoing and fail to implement effective measures to improve work cultures.
Large sums of company monies are being used to conceal workplace wrongdoing retrospectively, through settlements negotiated by brutal non-disclosure agreements (NDAs).
It is not right that our legal system is effectively being used to conceal abuse, empower the perpetrator, and gag the victim
This is the crux of the problem: NDAs were designed to protect trade secrets like intellectual property, but over time they’ve been weaponised to silence employees too. Sexual misconduct is just one abuse that NDAs cover up. These non-disclosure agreements are being used to gag victims of racism, bullying, and maternity discrimination, too, where research indicates that 92 per cent of pregnant women sign an NDAs after their employment is terminated and the majority feel forced to sign.
These contracts can be unbelievably malicious, preventing victims from speaking to friends, family and even their doctors. The injustice and secrecy of the process also takes a huge personal toll on victims: damaging their confidence, careers, and personal lives, with recent research by Speak Out Revolution showing that 9 in 10 who signed an NDA said it impacted their mental health.
The true scale of the problem is difficult to establish because many are fearful that if they do speak out, the financial consequences could be unbearable. This is why I am supporting the #CantBuyMySilence campaign launched by Zelda Perkins, which is enabling individuals to have their experiences heard in an anonymised way to ensure law makers are clear about the scale of harm being done.
What protects cultural change called for by #MeToo is legislation, and in the case of NDAs the law has not changed as it needs to.
In 2019 the government recommended a change in the law to stop NDAs preventing people sharing information with the police, medical professionals, and lawyers. It also recommended that lawyers should face punishment for creating these unethical NDAs, but the law is yet to be updated and these contracts continue to silence unknown numbers of victims.
It is not right that our legal system is effectively being used to conceal abuse, empower the perpetrator, and gag the victim. This is a huge injustice, which is why I have introduced a Bill in Parliament today to prohibit NDAs from being used like this. By limiting NDA use, organisations will be encouraged to improve their management systems, compelling them to deal with discrimination and other abuses more ethically, rather than imposing silence on innocent victims.
Action is being taken across the world to tackle the misuse of NDAs; with new laws passed in the US states of California and New Jersey, and draft legislation in Canada, Australia and Ireland. There have also been reports that several high-profile organisations have decided to limit or prohibit their use of NDAs, including The Church of England, the BBC, Uber, Conde Nast & University College London.
To foster transparent, open workplaces in the UK we need to tackle NDAs that are being routinely abused to do the very opposite. I am pleased that government has made an important step to review options to limit NDAs at universities through its Tackling Violence Against Women and Girls strategy, and I hope that the government will go one step further by limiting the use of NDAs in the workplace, too.
Maria Miller is the Conservative MP for Basingstoke.
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