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In response to the #Metoo movement and scandals like the Presidents Club the government are consulting on limiting the use of confidentiality clauses  – also known as non-disclosure agreements  in sexual and racial harassment cases.   

The Government’s announcement to Parliament on Monday (March 4) made it clear that non-disclosure agreements (NDAs) have their legitimate uses, for example an NDA is standard practice when an employee and employer settle an employment dispute.   It is also legitimate for businesses to want to protect trade secrets.  Nevertheless these agreements cannot be used to shield wrongdoing: this is against the law.

The whistleblowing law- the Public Interest Disclosure Act- ‘trumps’ any part of an NDA which tries to block public interest information from being concealed.  In effect, unlawful or criminal conduct cannot be hidden by an NDA.

But the problem is, not many people are aware of this.  A worrying minority of employers have banked on this lack of knowledge and nonetheless abused such agreements by putting in draconian confidentiality clauses that are unlikely to be enforced in court, hoping that a whistleblower or victim will be in the dark.

This lack of legal know how and a belief that they cannot escalate their concerns prevents the whistleblower going to the Police or the press.  This seems to have been the case of both the Presidents Club and the treatment of Zelda Perkins in relation to allegations of rape and sexual assault against Harvey Weinstein.

The Government announced the following key proposals that they believe will create ‘a more level playing field between workers and employers, providing more understanding over rights and legal responsibilities’:

• Legislating that confidentiality clauses cannot prevent any disclosure to the police
• Requiring a clear description of the limits of confidentiality provisions within a written statement of employment particulars (in the case of confidentiality clauses in employment contracts) or within settlement agreements
• Extending the law that means a worker agreeing to a settlement agreement receives independent advice, by specifying that the advice must cover the limits of any confidentiality clauses in the settlement agreement.

Anything that clarifies victim and whistleblowers rights is a good thing – but the response outside government so far has been a chorus of “this doesn’t go far enough” and described by one political pundit as a “public information campaign”.   Protect’s view is the government proposals will better inform workers of their existing rights but it doesn’t go far to alter the system itself.  It doesn’t clarify the tricky issue of when harassment or discrimination can be disclosed, and it doesn’t address the individualised approach to dealing with workplace discrimination.  Protect believes these proposals are a good starting point, but far from the final conclusion.

The #Metoo movement has been founded on individuals speaking out and finding they are not alone in voicing their concerns.  This is the dilemma facing the whistleblower – how do they know their concern is a one-off incident, or indicative of a wider problem.  All the time an individual can be “silenced” through a legitimate NDA, the problem remains.

Some may suggest that discrimination (of any kind – not just sexism) meets the public interest test.  At present, what is the public interest is a matter for tribunals to decide.  A single case of discrimination may not meet the “public interest” test for disclosure– but the rules are not hard and fast – a tribunal needs to ask: what is the nature of the wrongdoing, the interests affected, the identity of the wrongdoer, the numbers involved?  Too many uncertainties and the individual is effectively silenced.  Worse, the employee risks the employer pursuing them through the courts for a breach of confidence if they speak up (to which there is little comfort in a response that the remedy lies in the employment tribunal).  Some commentators have suggested that there should be a public interest defence in the courts to a breach of confidence claim – but the uncertainties about what is the public interest remain.

Suppose the government clarified when it is in the public interest to report discrimination.  The next question is to whom?  Clearly the police are not the appropriate body to take action over an unlawful breach of an employment contract.  Even if they welcome the intelligence, we need to manage expectations that allowing people to report to the police will result in action.  Is it time for regulators to step up?  Some like the FCA recognize that discrimination may be relevant in their assessment of fit and proper persons.  The Kark review in the NHS also examines what standards should be expected of senior managers.  But many industries are unregulated and, as a result, there is no external body to “join the dots” and identify wider workplace concerns. As the Equality and Human Rights Commission prepares to join the list of prescribed regulators, is it time for them to take on this role?

From Protect’s point of view we hope through the public consultation to persuade the Government to widen reforms of all whistleblowing situations and add the following to their announced proposals:

• Section 43J should be amended with more robust language. We suggest the following wording: “no agreement made before, during or after employment, between a worker and an employer may preclude a worker from making a protected disclosure.”
• We agree with the consultation proposal that there should be a requirement on lawyers when advising on settlement agreements (see S203 (3) ERA) to explain the meaning and effect of 43J PIDA (and any additional anti-gagging provisions brought forward by the government).
• To publicise and underpin fresh guidance there should be a public awareness campaign around workers’ rights under PIDA as well as anti-discrimination law in the Equality Act.
• Widening the ban: While we do not support the outright ban of NDAs, we do not think it would ever be appropriate to use an NDA to prevent the disclosure of an unlawful act that has not yet taken place. We would also like to ensure that other clauses in settlement agreements (such as warranties or non-disparagement clauses) are not used to circumvent the anti-gagging provisions in PIDA (or other soon to be proposed anti-gagging provisions).
• Give a greater role to Equality and Human Rights Commission (EHRC) in enforcement of harassment and discrimination: we are concerned the current proposals will not cover situations where sexual and racial harassment/discrimination falls below the level of criminal activity, meaning the police would not be able to investigate. In this situation a whistleblower would have the right to raise their concerns, even with an NDA in place but with no external body or regulator that could take the concerns.
• Stronger duties on employers: we back the Women’s and Equalities Select Committee’s proposals to create a positive legal duty on employers to prevent harassment with a breach of this duty enforced by the Equality and Human Rights Commission. This, combined with the Government proposals to ban agreements that prevent disclosures being made to the police, could really rebalance the power between workers and employers.

You have more to worry about Facebook, Google and the like collecting your data than any information any government holds on you. That was the view of Mark Zaid, US Attorney who spoke at UCL’s conference on “Privacy and Data: Law and Practice” about the guardians of information in our “post-truth” world.

He should know – many of his clients are spies and he brings lawsuits against the US President. His stark message was these large organisations – which capture so much information about all of us in our daily lives – are largely unregulated. You may sign up to their privacy policies now, but what happens in 50 years’ time if they decide that’s long enough and release all the information they hold on you? The UK Parliament’s Digital, Culture Media and Sports Committee have recently published their report describing Facebook and its executives as “digital gangsters” following their investigation into disinformation and fake news.

How is it that we have so many rules – from confidentiality clauses in contracts to GDPR – that control what information we can share, and yet fail to regulate the biggest data gatherers of them all? Mark Zaid referred to a book – published 50 years ago – called “Towards 2018” which predicted many of the technological advances we’ve seen and warned that privacy would be an issue…. Why didn’t we prepare and what should we do now?

For whistleblowers the issues of privacy and confidential information are constantly rubbing up against disclosures in the public interest. The #Metoo movement and the recent injunction sought by Philip Green against the Telegraph show our lines about what should and should not be private are fluid. There are real concerns if employers use Non-Disclosure Agreements to cover up wrongdoing when it comes to sexual harassment. But the answer is to consider when, not if, NDAs are used – both sides can benefit from keeping some matters confidential.

The direction of travel in many areas is away from privacy rights. Partners at BCL Solicitors talked of the erosion of financial privacy rights when it comes to detecting crime and money laundering. Individuals too should be wary – anyone who thinks that they can wipe their past will find the “right to be forgotten” is heavily circumscribed and can’t be used to hide past wrongdoing.

UCL provided a wide ranging and thought provoking course, which raised many questions about how we should regulate and protect information and in whose interests.

Blog by Liz Gardiner, Interim Director of Policy & Legal

Protect Head of Policy Andrew Pepper-Parsons attended conference Exposing Secrets: the past, present and future of U.S. National Security Whistleblowing and Government Secrecy which brought together academics, legal experts, journalists and a few US national security whistleblowers to debate the issues.

The two-day conference on US national Security whistleblowing aimed to take a historic look at national security whistleblowing to see if fresh perspectives could be found. 

Why does history matter?  For me this was an interesting approach as the cases of prosecutions of national security whistleblowers are low in both the US and UK. Five in the US since 2015, and the last prosecution brought to trial in the UK was 2006.[1]  The legal frame work in both countries creates an offence with no public interest defence. Also in the US and the UK, the classification of secrets is held by the executive (in the UK this would be Ministers, in the US, the President) and  no way challenge abuses and decisions over what should be classified.

This all creates a secret space where the intelligence community operates, where there is little information, especially in the UK, about how these agencies operate.  On top of that we know from whistleblowing best practice in industries and sectors that are more open, that whistleblowing arrangements that lack an independent external route tend to be more flawed. A good example of an external route in the UK is the Financial Conduct Authority regulator which insists they are included as a route for whistleblowers to raise concerns with.

History lessons

History can show us the development beyond the cases that have been brought.  Sam Lebovic, historian of American politics and culture, pointed out that the current system sets the rules of game of disclosing national security secrets between the government and the press but leaves the whistleblower out in the cold.  The Government have strong legal powers to pursue whistleblowers who reveal information to the press, but these laws are not used against the press themselves, due to the First Amendment giving them a strong defence as a publisher.  The First Amendment (Amendment I) to the United States Constitution prevents the government from making laws which respect an establishment of religion, prohibit the free exercise of religion, or abridge the freedom of speech, the freedom of the press, the right to peaceably assemble, or the right to petition the government for redress of grievances. It was adopted on December 15, 1791, as one of the ten amendments that constitute the Bill of Rights.

Such protection  is not available to the whistleblower who is left rather exposed, relying on the journalist to protect them as a source while also hoping the US Government doesn’t independently discover who they are.  An interesting area of research would be to look at the development of these type of measures in the UK to understand how we got to our  current legislation  – for example it would be interesting to examine the historical development of the Official Secrets Act since it was first introduced in 1911.

Can journalists play a role?

Edward Snowden, the NSA whistleblower currently exiled to Russia, who skyped in to the conference,  adds to this by stating that the current system is a reflection of the incentives in place for government.  Their interest is to avoid political embarrassment rather than to hold the intelligence community to account. This informed his decision to use journalists rather than internal routes with an organisation because he had seen Thomas Drake and John Kiriakou both suffer costly legal fights and prison for using these mechanisms.   Thomas Drake, a former senior executive at the National Security Agency, blew the whistle on massive multimillion dollar fraud, waste and abuse, the failure of 9/11, as well as the widespread violations of the rights of citizens through secret mass surveillance programs after 9/11.  Former CIA analyst John Kiriakou was the first US government official to confirm that the US used waterboarding to interrogate terrorism suspects. In 2007, Kiriakou disclosed to ABC News the CIA’s waterboarding of Abu Zubaydah. In 2012, Kiriakou was charged and prosecuted for revealing classified information to the media and in 2013 was sentenced to 30 months in jail.

Snowden believes an independent panel of journalists should be used as an independent mechanism for decisions of disclosure.  This is probably unworkable as journalists would be accused of being biased towards disclosure but Snowden is not wrong on wanting to create a more independent system.

The introduction of a public interest defence and an independent classification system is possible. The Tshwane Principles which is a set of global principles developed by civil society academics and practitioners on balancing the need for government’s to protect sensitive information against the public’s right to know. This is the best route to create a confidential rather than secret space for Government to operate when it comes to national security.

[1] US: https://www.theguardian.com/us-news/2015/mar/16/whistleblowers-double-standard-obama-david-petraeus-chelsea-manning and https://theintercept.com/2018/06/26/reality-winner-plea-deal/ UK: https://www.theguardian.com/media/2008/jan/09/pressandpublishing.freedomofinformation