“Employers and their legal advisers should not be complicit in using NDAs to cover up allegations of unlawful acts.”
For years, victims of abuse and harassment by Harvey Weinstein didn’t speak out. For many, it was because they were scared of the effects it would have on their career. Others thought they wouldn’t be believed. Others knew they would, but also knew Weinstein’s actions were an open secret, tolerated because of the amount of power he had accrued during his career.
And a select number didn’t speak out because they couldn’t. Subjected to non-disclosure agreements (NDAs), sometimes known as gagging orders, they would face huge penalties if they broke the contracts they had signed and spoke about what Weinstein had done to them.
Weinstein is not the only person to have used NDAs. Philip Green, the owner of Topshop, widely used NDAs to shut down allegations of harassment, racial abuse, bullying and intimidation. And there are countless men and women around the world who are subject to NDAs for reasons we won’t ever know.
But in the UK, we could be about to see a change when it comes to the use of gagging orders. The Women and Equalities Committee has just released a report recommending that NDAs should no longer be used to silence victims of abuse.
The committee launched an enquiry following the revelations in November 2018 about the number of NDAs used by Green, and after a report on sexual harassment by the group highlighted concerns that “some allegations of sexual harassment are being ‘dealt with’ using settlement payments and agreements that prevent the employee from speaking about the alleged behaviour – even unlawful behaviour – without those allegations ever being investigated and without any sanctions for perpetrators”.
In its latest report, the committee looked at all forms of unlawful discrimination and harassment. It said that it was “completely unacceptable that allegations of unlawful discrimination and harassment in the workplace are routinely covered up by employers with legally drafted non-disclosure agreements”.
NDAs were being used in place of investigating allegations of unlawful discrimination properly, or at all in some cases, said the committee, and an imbalance of power between employees and employers means that “employees can feel they have little choice but to reach a settlement that prohibits them speaking out”.
NDAs can have a number of negative effects on the victim. The committee said: “The most shocking evidence given to our inquiry has been the detrimental effect an NDA can have on the lives of ordinary people.
“We received evidence from those who, after signing an NDA found it difficult to work in the same sector again.
“Some suffer emotional and psychological damage as a result of their experiences, which can affect their ability to work again or to move on. Some also suffer financially as a result of losing their job and bringing a case against their employer.”
And the committee said the “cover-up culture” created by NDAs needed to be challenged and that “employers and their legal advisers should not be complicit in using NDAs to cover up allegations of unlawful acts”.
The committee recommended the government ensure that NDAs cannot be used to “prevent legitimate discussion of allegations of unlawful discrimination or harassment, and stop their use to cover up allegations of unlawful discrimination, while still protecting the rights of victims to be able to make the choice to move on with their lives”.
There have already been moves to change the way NDAs are used. The government’s domestic abuse bill, introduced this year, included plans to ban companies from creating agreements that prevent employees from going to the police with complains about sexual harassment and abuse.
But the law needs to go further to protect victims from being silenced, and the Women and Equality Committee’s recommendation that NDAs not be used to cover up crimes is a step in the right direction.