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Why NDAs need reform 

 Maria Miller MP, former Chair of the Women and Equalities Select Committee, had the first reading of her 10-minute rule bill ( September 14) calling for the reform of non-disclosure agreements.  Miller’s Bill proposes to make it a basic principle of our legal system that no one, however powerful, can buy an employee’s silence if there are allegations of wrongdoing in the workplace.  

Protect welcomes the bill and has been calling for NDA reform for some time. 

The issue with the abuse of NDAs is very much still on the public agenda with hundreds of women writing testimonials for the campaign and new news stories regularly being published about workers who have signed gagging clauses designed to intimidate them from speaking out. For example, this week The Times reported former BBC employee Una Carlin, their NI’s spokesperson for 15 years, signed an NDA after she raised workplace bullying concerns, which means she cannot reveal the details of her allegations. She wants the BBC to ban the use of NDAs.  

Campaign Can’t Buy My Silence, launched by Zelda Perkins (campaigner and the first woman to break an NDA with Harvey Weinstein) and Julie Macfarlane (Canadian law professor) are also calling for legislative and regulatory change and want to make NDAs unenforceable for anything other than their original purpose i.e. to prevent the sharing of confidential business information and trade secrets.  

Protect supports legislation that will regulate and reduce the abuse of NDAs to cover up wrongdoing in the workplace. At the end of September, Head of Policy Andrew Pepper-Parsons, and I met with Maria Miller MP’s office to discuss our suggestions for legislation on NDAs based on our experience advising whistleblowers. We have since sent a briefing detailing our key suggestions.  

 Protect’s NDA reform proposals 

  • Protect believes confidentiality clauses and NDAs can serve a useful and legitimate purpose, particularly where they protect commercially sensitive information, but also because an appropriately drafted confidentiality clause can benefit both employee and employer when reaching settlement agreements.  
  • Protect does not support the call for an outright ban on NDAs. However, we do propose that NDAs should only be used where appropriate and necessary. The law needs to be clearer on this and workers need to be better informed of their rights.  
  • The inclusion of warranties in NDAs should be made unlawful (see below) 
  • Clearer wording in NDAs and greater awareness of worker rights around NDAs is needed. 

As well as the suggested reforms set out in our Draft Whistleblowing Bill and detailed in the earlier version of this article, we have made two additional suggestions.  

Firstly, we recommend that the inclusion of warranties in NDAs are explicitly made unlawful within any reform. Warranties in agreements can require an individual to explicitly agree that any concerns that they have raised have been satisfactorily concluded, that they do not have any outstanding concerns or even that they will inform the former employer before they raise such concerns to a regulator. This means that any further disclosure of the concerns could possibly put them in breach of the agreement. This can be a strategic tactic used by employers to attempt to get around the existing law on whistleblowing which states that no agreement can a worker from whistleblowing, or making a protected disclosure.   

Secondly, we recognise that one of the main hurdles with NDAs is that individuals often do not know what their rights are and what they can legally still raise despite signing an NDA. This knowledge and awareness gap creates a culture of fear and silence in which wrongdoing goes unheard and unaddressed. In a survey of 500+ people by Speak Out Revolution, 95% said that signing an NDA had a negative impact on their mental health. 

Along with clearer wording of NDAs and legal practitioners clearly setting out the limitations and rights of those signing NDAs, more needs to be done to raise public awareness around the legitimate use of NDAs and confidentiality clauses. Without a public awareness campaign our concern is that any legal change would be ineffective.  

Maria Miller’s Bill is due to have its second reading on 18 March 2022.  

 

By Protect Parliamentary Officer Rhiannon Plimmer-Craig