The Memo: NDAs covering misconduct at work to be banned under changes to the Employment Rights Bill

If you’ve ever binge-watched a legal drama like Suits or The Lincoln Lawyer, it’s very likely that you’re familiar with the concept of an NDA, and it might seem like they’re thrown around all over the place. Non-disclosure agreements, or NDAs, are used in a variety of situations to keep information confidential, restricting what the signatory of an agreement can say about something, or who they can share information with. They were originally created to allow individuals to protect their intellectual property, or for businesses to protect commercial or sensitive information, but have since been used in other ways, too. 

There have been a number of high-profile situations where NDAs have been used to prevent victims from speaking out about crimes committed against them. One of the most high-profile examples relates to Zelda Perkins, former PA to Harvey Weinstein, who signed an NDA after reporting her boss’s misconduct. This contract stopped her from telling anyone, including therapists and her family, about the abuse she had been subjected to. Perkins now leads the campaign group Can’t Buy My Silence, which has been at the forefront of calls for the changes that could be made to the Employment Rights Bill, alongside MPs such as Sarah Russell and Louise Haigh. 

New proposals from the government intend to ban the use of NDAs when they are intended to operate in this way, ensuring that employees who have been subjected to harassment or discrimination will no longer be silenced by these agreements. The proposed changes intend to make it unlawful to prevent workers from disclosing information about harassment or discrimination through clauses in agreements with employers.  

Whilst some protection for workers is already provided by the whistleblowing framework – the original Employment Rights Bill officially protects disclosures about sexual harassment, for example – the framework is quite limited in scope. For a disclosure to fit within the framework necessary for protection to be provided, it must relate to one specific category of wrongdoing, must be based on information (i.e. not just an allegation), and must be made in the public interest. The new provisions will be more direct, however, as they will apply to all forms of harassment and discrimination in the workplace.  

If they come into force, the new provisions will mean that any confidentiality clauses already in existence will become unenforceable, and employers will not be able to use such clauses in further contracts. This includes settlement agreements to prevent workers from disclosing allegations, even after a financial settlement has been made. Employers must not stop employees from discussing the way in which a company has handled a complaint, and must not prevent witnesses from speaking out about what they’ve seen or how their employer has responded to that. They will not be able to rely on broad reputation protection clauses that could be seen to silence disclosures of harassment or discrimination either. 

These proposed measures should allow employees to speak openly about their experiences and how their employer responded to them. However, we will have to keep an eye on updates to see which amendments come into force, and how this impacts reports of discrimination and harassment in the workplace. In the meantime, you can peruse our handy practice area guide to find out more about life as an employment lawyer.