Employment Rights Bill

Debate between Baroness Jones of Moulsecoomb and Baroness Kennedy of Shaws

Committee stage
Monday 19th May 2025 Lords Chamber

[Baroness Kennedy of The Shaws (Lab)]

My Lords, I will speak to Amendment 101 in my name, in which I am joined, as we have heard, by the noble Baroness, Lady Kramer, but also by the noble Baroness, Lady O’Grady, who, of course, was the leader of the TUC, and by the noble Baroness, Lady Morrissey, from the world of finance and business. Many people in this Committee are going to support some way of dealing with the misuse of non-disclosure agreements.

I make it clear that there is no suggestion here of banning NDAs generally. There is a role for NDAs—people leaving employment should not be able to take with them the secrets of the company or its client list, for example. What we are talking about is the misuse of non-disclosure agreements to silence complainants, particularly women complaining of sexual harassment and abusive conduct by employers, supervisors, the boss, fellow workers or the client of an employer. I remind the Committee that since NDAs came into existence, complainants have been coerced into signing such an agreement on bringing a complaint in the workplace. Often, it is a way of waving people out and into non-employment in that workplace.

I emphasise that the amendment would not ban all NDAs. It is not preventing the use of NDAs in such proper cases as I have mentioned. But if the complainant requests a non-disclosure agreement because that is what, let us say, she would like to have, the amendment requires that she be offered independent legal advice. I am very supportive of the suggestion made by the noble Baroness, Lady Morrissey, that there be some way in which that might be funded, certainly in the corporate world, by the employer. We may be able to talk through in this Committee how provision might be made for the employee to be given that kind of independent advice, separate from the lawyers for the firm.

The independent advice has to involve advising on more than just a non-disclosure agreement but also on all the other alternatives that might be available to a worker who has experienced harassment, sexual harassment, abusive conduct or bullying. There has to be full consent if the exemption is going to work. In general, what we are calling for is that a non-disclosure agreement should not be used to silence complainants. I make that simple and clear. I cannot understand why that would be resisted by a progressive Government seeking to create good workplaces.

This amendment lists persons whom a worker may be allowed to speak to. I advised Zelda Perkins, who was just mentioned by the noble Baroness, Lady Kramer. She had signed a non-disclosure agreement all those many years ago relating to Harvey Weinstein, because of something that had been done not to her but to her coworker. She was encouraged to sign it and she and the coworker, who had been seriously abused, were ushered out of Miramax with a payment. They were in their early 20s at the time and accepted the settlement, knowing no better. In the years that followed, they often felt deeply regretful about the way in which that happened and that they were put in the hands of lawyers chosen by the employer. They signed non-disclosure agreements which said they could not speak to their doctor or to any lawyer or therapist, and that they could not take support from any other source.

That is why my Amendment 101 mentions the kind of people one ought to be allowed to turn to and confide in. People need to be able to do that. Non-disclosures should not prevent people taking support from a family member, spiritual counsellor, community elder or the many other people I have listed.

This amendment deals with one of the problems that takes place. The reason why Zelda Perkins eventually breached her non-disclosure agreement and spoke out—with great fear, because she thought she would then be sued by Miramax—was the public interest that arose at the time. She wanted to support the many other women who had stepped forward and were being disbelieved, because she could explain that she had been subjected to that kind of pressure when she was speaking to the abuse that had been experienced by her colleague at work. She ended up fearful and took legal advice because she was worried that she would be sued for speaking out.

That is why we are asking that non-disclosure agreements should not be misused in this way to silence women. I have had the experience over the last few years of chairing inquiries in a number of different circumstances. One of the shocking things that comes to light is the frequency with which non-disclosure agreements are used for this purpose and the number of times that these agreements are used basically to usher somebody out of the business. The person with power, who is more senior in the organisation, gets away with it and there is no way of remedying it.

Non-disclosure agreements and their misuse should be addressed in the Bill. I urge the Government to do so. I hope that, at the end of all this, we will be able to come together with the Government to find an amalgamation of the number of somewhat similar amendments here to really deliver justice for women in the workplace.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I will speak to several amendments in this group that I have signed, which are all very good.

Non-disclosure agreements can be exceptionally toxic and corrosive, because they can be used to cover up wrongdoing by an employer. It is a very dangerous game. They are not simply a contractual arrangement between two willing parties; the employer’s wrongdoing could affect other employees as well, so their effect is much wider than on the employee who is party to the agreement. I very much support Amendments 98 and 101, and I hope that—as the noble Baroness, Lady Kennedy, says—we can find common agreement on them. The noble Baroness, Lady Kramer, did a very thorough skate-through of all of this, so I will mention only three of the amendments that I have signed.

I feel very strongly about this. Whistleblowers save public money and expose bad practice. They should be celebrated, yet they are treated as traitors by professions, public services and corporations. Amendment 147 would turn that around by placing a duty to investigate on those organisations. My own experience of a whistleblower was when a police officer came forward and told me about the domestic extremist database that I was on. Thousands of other people were on that database as well, including journalists, MPs—such as Caroline Lucas—and local councillors. There were all sorts of people on it, but the two things we all had in common were that none of us had committed a criminal act of any kind and that we had all said things that challenged the status quo. That was enough to get us on to that domestic extremist database.

I cannot imagine how much it cost. The police were tracking all of us and keeping details of what we were doing, such as when I spoke in Trafalgar Square or went on a cycle ride. All these things about me were kept on that database—what an absolute waste of police time and taxpayer money for pointless spying. I put everything out on social media, so they could have just followed me there. Ex-spy cop Peter Francis blew the whistle on how the special demonstration squad was spying on the noble Baroness, Lady Lawrence, when she and her husband were campaigning to get justice for their dead son.

Whistleblowers need reassurance that they will be taken seriously, and giving the company or organisation they work for a duty to investigate would provide that. It would also combine with the Government’s new duty of candour to help change the culture of many organisations. I know the Minister is keen to speed up the Bill’s progress, and I do not think that this side of the Chamber is helping in any way, but the current laws are outdated and inadequate, so rather than spending ages examining the whole subject, it would be good just to adopt the very modest Amendment 147.

Amendment 126 would ensure that those whistle-blowers left out by the existing framework finally receive legal protection. The last 25 years have seen a massive rise in self-employment and subcontracting. There are now many more people in workplaces who may spot wrongdoing or risks who have no legal remedy if they blow the whistle. The Post Office Horizon scandal saw hundreds of sub-postmasters wrongly accused and sometimes imprisoned for fraud and false accounting. Lots of people knew that the Horizon system was going wrong from very early on, but the sub-postmasters did not have the legal protection to blow the whistle.

This amendment also grants whistleblowers strong protection from blacklisting when applying for work. At present, only job applicants in the NHS are protected from discrimination as whistleblowers. We encourage those NHS workers to speak up because it saves lives, but we allow workers in the building industry to be blacklisted for raising health and safety concerns that would stop deaths on dangerous sites. Some of those in the building trade had to emigrate to find a job; this amendment would have helped protect them. I understand the Government saying that they need to consult first, but a lot of that legwork was carried out by the previous Government. It seems ridiculous not to publish that whistleblower framework immediately so that we can make change happen faster.

Amendment 281 seeks to make express provision for court discretion to void non-disclosure clauses in employment contracts. The growth of the use of non-disclosure agreements is a big concern. Recent allegations that gagging clauses contributed to the cover-up of decades of sexual abuse by former Harrods owner Mohamed Al Fayed have once again led to calls to ban them here in the UK. Last September, the BBC revealed that five women claimed that the billionaire Mohamed Al Fayed raped them while they were working at Harrods department store. We have already heard that, as others were, they were forced into signing an NDA to prevent their speaking out. These agreements, as I described them earlier, can be corrosive, toxic and immensely damaging to the individuals who sign them and then regret doing so.

This is a really important group. I hope the Minister can meet some of us to discuss a way forward to incorporate some of the sense of these amendments into the Bill.