A ban on UK employers using non-disclosure agreements to hush up cases of sexual misconduct and harassment is being considered as part of the government’s overhaul of employment rights.
After a slew of high-profile cases and years of campaigning by activists, it is understood that ministers are prepared to back a change in the law to prohibit the misuse of gagging clauses.
Labour’s flagship employment rights bill does not contain provisions on NDAs but Justin Madders, the workers’ rights minister, has indicated the government is ready to amend the legislation in the coming months.
A change to the bill proposed by the Liberal Democrat MP Layla Moran was rejected this week but the minister told a parliamentary committee that the government wanted to “look more closely at what we can do in this area”.
Madders said: “I have met some of the interested parties and there are other proposals to deal with this issue that might be slightly more workable than those in the new clause proposed by the Liberal Democrat spokesperson.”
A government spokesperson said: “This government is on the side of working people, and our landmark employment rights bill will deliver the biggest upgrade to workers’ rights in a generation. We are aware of concerns about the misuse of NDAs to intimidate and silence victims of crime, or other types of misconduct such as harassment, discrimination, and bullying, and are taking a fresh look at these issues to identify the right approach.”
Campaigners are pushing for the UK to follow legislative changes already made in Ireland, Canada and the US, where NDAs cannot prohibit disclosure of sexual harassment, discrimination or bullying without it being the expressed wish of the employee.
Zelda Perkins, a former PA to the jailed Hollywood film producer Harvey Weinstein and founder of the Can’t Buy My Silence campaign, said she was increasingly confident there would be a law change.
She said: “We have high hopes for this bill, for an amendment to follow in the footsteps of Ireland, Canada, America, in terms of protecting the rights of workers, and it is an amendment that won’t cost the government anything but will have a huge impact. It would seem a dereliction of duty if they didn’t take this forward.
“We’re not not trying to stop settlements happening. Settlements are legitimate. They need to happen. We’re not trying to stop confidentiality in settlements. What we are trying to change is the balance, the power dynamic, and that confidentiality can only be used when it’s specifically requested by a victim.
“The other part of this is trying to change the law so that actually it’s an offence for solicitors or in-house counsel to make use of confidentiality to hide harm, [or] even to hide allegations of harm.”
NDAs are legally binding contracts that prohibit any party to the agreement from sharing specified information with external agents.
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The case of Weinstein, who is serving a 16-year sentence in the US for rape, highlighted how the rich and powerful have misused them to shield themselves from criminal accusations.
Last year, the Treasury select committee backed a ban on the use of NDAs in harassment cases after concluding that their widespread use in the City of London silenced victims and protected perpetrators who went on to abuse others.
This week, the government confirmed it would implement the previous government’s ban on their use in universities to silence victims of bullying, harassment or sexual misconduct.
Moran said this protection needed to be extended to all employees. She said: “I was first approached by young women at Oxford University who had been effectively silenced by their colleges following incidents of sexual harassment. They were asked to sign gagging clauses by their colleges. The effects were indescribable, and in one case even stopped a young woman talking to her GP.
“The employment rights bill is a golden opportunity to prevent victims of harassment in the workplace from being silenced. The government has already committed to banning universities from using NDAs in cases of sexual misconduct, harassment, and bullying, and it’s time to extend these protections to other sectors.”