An MP has presented a private members’ bill that calls for the use of non-disclosure agreements in sexual harassment cases to be outlawed.
Introducing the bill under parliament’s 10-minute rule today, Maria Miller – the former chair of the women and equalities committee which investigated sexual harassment at work – said such a law would stop organisations from “silencing victims” of harassment.
The Conservative MP said: “In 2017 the Me Too movement revealed the scale of sexual harassment and abuse in the workplace.
“When used unethically, NDAs are catastrophically damaging to innocent parties, and immoral because they are being used as safety nets for employers to routinely cover up abuses without consequence. The evidence also shows it takes a huge personal toll on victims, leaving them emotionally and psychologically drained, disillusioned, and left with a total loss of faith in the legal system.
“This is an injustice twice over, which is why I have introduced a bill in parliament today protecting victims from malicious NDAs that cover up illegal abuse, discrimination and other wrongdoings against employees.
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“I believe that legislating to limit NDAs in this way will prevent organisations acting unlawfully in the first place, compelling them to deal with discrimination and other abuses more ethically, rather than impose silence on innocent victims who have been wronged.”
Employment lawyers indicated that there was strong evidence in favour of regulating the use of NDAs, but organisations should still be allowed to use them to protect their commercial interests.
“If used sensibly and ethically, non-disclosure agreements can make commercial sense, working to the mutual benefit of employees and employers, and allowing both parties to voluntarily effect a clean break,” said Keely Rushmore, a partner at Keystone Law.
“However, as demonstrated by NDAs in connection with settlement of allegations against high-profile figures, the concern is that sometimes the NDA is not as ‘voluntary’ as it might appear. There can be a significant imbalance of power between the parties, and an individual can be under an enormous amount of pressure (both emotional and financial) to agree to draconian terms presented to them.”
Rushmore said some progress had been made since the #MeToo movement drew attention to the inappropriate use of NDAs. The Solicitors Regulation Authority has warned that inappropriate use of NDAs can put a solicitor in breach of its principles and code of conduct and therefore at risk of disciplinary action, while The Equality and Human Rights Commission, the Law Society and Acas have issued similar guidance.
Louise Mason, senior lawyer at Linklaters, noted that the government had in 2019 committed to introducing legislation curbing the use of NDAs, but this appeared to have been delayed because of Brexit and the Covid-19 pandemic.
“Maria Miller’s Private Members’ Bill on restricting the use of NDAs highlights the extent to which employment law has stalled over the last few years. Her bill is just one of many employment related PMBs on urgent employment law issues which have been denied air time due to the public health crisis. Worker status, parental rights and flexible working are all long overdue for reform,” she said.
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