The government has confirmed that employers will be banned through the Employment Rights Bill from ‘gagging’ workers who have suffered from harassment and discrimination from later speaking out.
An amendment will be added to the Employment Rights Bill, currently in the House of Lords, which will void, or ban, the use of non-disclosure agreements (NDAs) against employees who have been subject to harassment or discrimination in the workplace. Deputy prime minister Angela Rayner has pledged that it is “time we stamped this practice out”.
Non-disclosure agreements
Ministers urged to outlaw misuse of NDAs
The move follows calls by campaigners and Labour politicians, including former transport secretary Louise Haigh, urging ministers to use the Bill to ensure victims are able to speak freely about their experiences.
In May, a petition signed by more than 91,000 people was delivered to 10 Downing Street calling for the change.
An NDA is a legally binding document that protects confidential information between two parties from being made public. They can be used to protect intellectual property or other commercially sensitive information but over the years their use has spread, including stopping victims of abuse from telling their stories.
The campaign group Can’t Buy My Silence UK, run by Zelda Perkins, a former assistant to Hollywood mogul and convicted sex offender Harvey Weinstein, described the amendment as a “huge milestone’” and said it showed the government had “listened and understood the abuse of power taking place”.
Employment secretary Justin Madders said: “The misuse of NDAs to silence victims of harassment or discrimination is an appalling practice that this government has been determined to end.
“These amendments will give millions of workers confidence that inappropriate behaviour in the workplace will be dealt with, not hidden, allowing them to get on with building a prosperous and successful career,” he added.
Peers are expected to debate the amendments when the Employment Rights Bill returns to the Lords on next week. If passed, they will need to return to the House of Commons to be approved by MPs as well.
However, Samantha Dickinson, equality and diversity partner at law firm Mayo Wynne Baxter warned that banning NDAs, while well-intentioned, also posed a risk of having unintended consequences that could be bad for businesses and individuals.
“While transparency is important there must be space for parties to a dispute, including those who have experienced harassment, to agree to confidentiality if they wish,” she said.
“A blanket ban removes agency and choice from victims who may prefer privacy over public proceedings.
“Removing this option entirely may discourage early settlement, leading to more costly and prolonged litigation for all parties involved, which in my experience runs contrary to what employees want.
“It could also deter employers from entering settlement discussions at all, fearing reputational damage from cases being aired regardless of merit.
“While tackling workplace harassment is essential, this move feels more symbolic than practical. In its current form, the proposal is unlikely to pass without significant resistance from business leaders, legal experts and even some employees – not because they oppose accountability, but because they value balance, fairness and resolution,” Dickinson added.
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