Non-disclosure Agreements

Debate between Alistair Carmichael and Louise Haigh

Wednesday 2nd April 2025 Westminster Hall

[Louise Haigh]

My hon. Friend is absolutely right. The issue overwhelmingly affects women and it overwhelmingly affects low-income workers; it affects all vulnerable people, particularly disabled people and people of colour. She is absolutely right that we have to address it in order to help fulfil our mission to tackle violence against women and girls, but we also need to be careful that we do not narrow our definition only to sexual harassment, as NDAs cover all kinds of abuse in the workplace. Quite simply, we need to remove this tool from employers completely.

It is only those with the means and the confidence to pursue their employers through the courts who can challenge these practices. Low-paid workers in hospitality or retail are being legally silenced after they have suffered serious harm, and they have no access to redress. I want to stress that I do not think 100% of hospitality businesses are bad employers or that the sector is packed full of people who set out to silence victims after they have been abused or discriminated against. The point is that these clauses have become boilerplate. They are signed unwittingly by workers and, in many cases, are required unwittingly by employers with little or no understanding of the consequences. It has become standard practice to include these broadly drafted confidentiality clauses in contracts that go far further than is required to protect commercial confidentiality or trade secrets.

[Mr Alistair Carmichael (Orkney and Shetland) (LD)]

What the right hon. Lady is saying is very important and the overall thrust of her case is absolutely on point. Is it not the case, though, that NDAs are the symptom, and that the underlying disease is the inability of ordinary people to get access to justice through the courts? That is why people enter into non-disclosure agreements: they fear that there is no other way that they will get proper recognition of their case.

[Louise Haigh]

The right hon. Member is absolutely right. NDAs are one tool of oppression, essentially, used against workers after they have been abused or discriminated against in the workplace. That failure to access justice through the courts is without doubt a wider disease that needs to be tackled by the Government, but NDAs and their misuse have to be clamped down on because they are having this terrible chilling effect across society and the world of work.

Since the debate last month, I have been inundated with details of such cases. There was the woman who was raped by a colleague at work but had signed a confidentiality clause that explicitly prevented her from discussing the issue even with medical professionals, making it impossible for her to recover from her trauma. An employee who signed an NDA on leaving her workplace has since been effectively blacklisted, because her former employer is undermining her to prospective employers, while she cannot tell her side of the story. A woman I met yesterday told me about the mental health charity she worked for that has discriminated on mental health grounds against at least four people she is personally aware of in the past year; three of them have signed an NDA, but she is bravely pursuing the charity through the courts, because she believes that it is the only way to get justice.

If mental health charities are exploiting this practice to discriminate against people with mental health issues, or, as raised in last month’s debate, progressive news organisations and trade unions are exploiting this practice, we have to accept that it is a serious problem in every type of workplace in this country and that employers simply cannot be trusted with this tool at their disposal.

This practice undeniably has a terrible impact on the individuals affected. It prevents organisations from facing up to the fact, or the scale, of their wrongdoing. It also affects our economy and our productivity, as people are forced out of their workplace—maybe because they are pregnant, have additional needs, or their face simply did not fit—and then they struggle ever to return to work. As the woman I met yesterday who had been a victim of this practice said:

“With all the discussion at the moment around disabled people and returning to work, I just want to cry. My experience is far too common for disabled people because too many employers simply don’t support disabled people at work.”

This is the tool that is then used against them.

If we are to tackle such structural issues, we have to remove the ability to silence people at will, and many other countries and jurisdictions agree. Ireland has recently legislated to ban the use of NDAs in cases of sexual harassment or discrimination. In the US, 27 states have legislated to ban the improper use of NDAs, with no apparent detriment to business or discouragement of settlements. Canada and Australia are following suit. Of course, we also saw some limited progress in this country under the last Government. In May 2024, the Victims and Prisoners Bill was amended to make it clear that any confidentiality agreement is void if it precludes a victim from speaking to legal and therapeutic advice services or family when it is related to criminal conduct. The Higher Education (Freedom of Speech) Bill was also amended to prohibit NDAs being used in cases of sexual harassment, discrimination and bullying.

We now have the absurd situation where students and workers in universities are protected, but a cleaner, who works on a university campus but for an outsourced company, would not enjoy those same protections. We have created a two-tier system of protection, so what is the possible justification for denying workers outside the higher education system that same level of protection?

All of this progress has been predicated on multiple consultations, reviews and evidence bases. In 2019, the Minister’s Department, which was then the Department for Business, Energy and Industrial Strategy, ran an extensive consultation on measures to prevent the misuse of confidentiality clauses in cases of harassment or discrimination. In 2019, the Equality and Human Rights Commission ran a consultation on the use of confidentiality agreements in discrimination cases. The Treasury Committee in 2023 conducted an inquiry into sexism in the City, which recommended further protections for victims of sexual harassment. The Women and Equalities Committee has conducted three inquiries into this issue, under both the last Government and the chairmanship of my hon. Friend the Member for Luton North (Sarah Owen). The most recent one was on misogyny in music, which again explicitly recommended banning the misuse of NDAs. There has been extensive scrutiny in the legal sector, with both the Legal Services Board and the Solicitors Regulation Authority conducting large consultations, resulting in more evidence of the endemic misuse of confidentiality agreements. Both the General Council of the Bar and the Law Society have called on the Government for legislative reform.

My one question to the Minister, who I know agrees that this issue needs to be tackled, is: what else does he or his Department need to be satisfied on the need to legislate? How much longer must low-paid workers be legally required to suffer in complete silence before we can be persuaded to take the necessary legal steps? I know he wants to take action. The strength of support from a number of political parties in the Chamber today demonstrates that the House wants to take action. Twenty-seven US states have passed legislation. The UK Government are starting to look like the outlier. Let’s not let this opportunity pass us by. Let this Labour Government lead the way on protecting victims and survivors in the workplace and finally bring an end to legalised abuse.

Oral Answers to Questions

Debate between Alistair Carmichael and Louise Haigh

Thursday 10th October 2024 Commons Chamber

[Louise Haigh]

I am very grateful to the hon. Member for raising that important issue. I will take it away and write to him.

[Mr Alistair Carmichael (Orkney and Shetland) (LD)]

7. What discussions she has had with the Maritime and Coastguard Agency on maritime safety breaches which occur outside UK territorial waters but within the exclusive economic zone.