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Sexual Harassment in the Workplace debates abuse of NDAs 

The Right of Women’s Sexual Harassment in the Workplace Legal Conference (November 19) brought together legal professionals, academics, charities and NGOs on the important subject of sexual harassment: how to tackle it in our workplaces and how to support victims.  

Senior Adviser and Parliamentary Officer, Rhiannon Plimmer-Craig, attended the conference. 

Empowering and insightful talks were given by Helen Mott, Eleena Misra, Suzanne McKie QC, Rehanz Azib and a lively debate on the use of NDAs, specifically in sexual harassment cases. All the panellists, Julie Macfarlane, Zelda Perkins, Arpita Dutt, Georgina Calvert-Lee and Beth Hale made excellent points and convincingly put forward the case for reform. The consensus across the board was that NDAs are currently being abused; they are used to silence victims, they are overly restrictive, they are used to cover up wrongdoing and they mostly benefit the employer. Some panellists were calling for a complete ban on NDAs – except for in their original purpose of protecting trade secrets. You can find out more this campaign here: Can’t Buy My Silence – A Global Campaign (cantbuymysilence.com) 

The rest of the panel agreed that there at least needed to be some kind of legal reform to prevent abuse. This is the stance that we take at Protect.  

Protect does not support the use of NDAs or confidentiality clauses in agreements for the purpose of silencing victims and whistleblowers, or to cover up wrongdoing. Indeed, common law principles and s43J Employment Rights Act state that confidentiality clauses cannot be used to conceal wrongdoing or stop whistleblowers raising their concerns. However, there is a lack of public awareness of the legal limits of confidentiality. Workers are often pressured into signing agreements that they do not understand, the drafting of the clauses are sometimes overly and unnecessarily restrictive, or the worker’s legal rights are not properly explained to them. You can read more about some of our recommendations for reform here: Why NDAs need reform – Protect – Speak up stop harm (protect-advice.org.uk) 

We believe that NDAs should only be used where appropriate and necessary, and where both parties want it. We recognise that NDAs can have a value in settling a claim, protecting third parties or for giving both parties a written assurance of confidentiality. When an employment relationship breaks down, the situation is rarely simple and there may be circumstances that neither employee nor employer would want made public. Confidentiality clauses are useful in situations where the conflict itself could cause harm as they can benefit both parties. For example, in the case of BC & Ors v Telegraph Media Group Ltd, the judge found that the NDA did benefit both parties, stating that “The employee may not wish details of the dispute and the terms on which it was settled to be disclosed more widely for a variety of reasons, such as to maintain personal privacy or in case it might affect future employment opportunities or for financial reasons.”  

A complete ban on NDAs reduces options for everyone involved, which would disadvantage those who could genuinely benefit from them.  

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