Employment Rights Bill

Baroness Morrissey Excerpts

Committee stage
Monday 19th May 2025 Lords Chamber

[Baroness Morrissey (Con)]

My Lords, it is telling that so many amendments have been tabled from across the Committee for discussion. Amendments 98, 101, 101A and 101C all aim to restrict the use of non-disclosure agreements in sexual harassment cases. There has already been considerable debate in the other place on this as well, led by Louise Haigh MP. I hope and believe that the strength of feeling and the rationale behind it are encouraging the Minister to consider tabling the Government’s own amendment to the Bill. The Bill provides such a wonderful opportunity to address a practice that has gone on for far too long, as others have talked about. Of course, this is not an academic issue. It has a real cost and causes real detriment to people’s lives and, of course, to their careers.

I speak in support of all these amendments and have added my name specifically to the one tabled by the noble Baroness, Lady Kennedy of The Shaws, because it sets out clear limitations on the silence that has, to date, been able to be bought through NDAs, while enabling workers to request an NDA, since that can help them move on with their lives, but under only certain conditions, including receiving “independent legal advice”. I want to clarify my additional Amendment 101A, which seeks to strengthen this provision by requiring employers to contribute to legal fees. We know that fees put many women off seeking advice: it seems very daunting, and then they have to pay for it at seemingly unlimited cost. I note that Ireland, which has been mentioned by the noble Baroness, Lady Kramer, has already adopted this practice of allowing NDAs for sexual harassment cases only in what are described as “excepted circumstances”. In those cases, employers are required to cover the employee’s reasonable legal costs.

I have suggested quite a specific figure, although I stress that it is the principle rather than any specific amount that is important. I note that I came up with that figure after consulting lawyers specialising in these matters. The key is that such costs would be borne only by those employers that have reason to enter into such agreements. Firms with good cultures that do not have sexual harassment cases will not need to enter into NDAs. They will have nothing to pay—another incentive to encourage companies to prevent harassment occurring in the first place.

As has been mentioned by others, those of us who have tabled our various amendments and supported the views of others will be very pleased to consolidate our suggestions into one amendment that is simple and workable, and will achieve the goal of limiting the use of NDAs so that they are not misused but used to help victims move on. I look forward to hearing the Minister’s thoughts and again urge the Government to use this opportunity to finally end a practice that has gone on far too long and been completely unchecked.

We all know about the #MeToo scandal and the causes célèbres, but until the noble Baroness, Lady Kennedy of The Shaws, talked about her experience as chair of inquiries and explained that the ones we hear about are, effectively, the tip of the iceberg, I would have said that we do not actually know much about the scale of the problem. No data is reported at present on the use of NDAs for sexual harassment and, of course, the nature of these agreements means that there are no revelations about the underlying issues. From personal experience, I have heard from women working in finance who sometimes use a third party to tell me their story because they are keen to see something done about it. I can only surmise that there must be many more in other sectors who do not come forward.

My final conclusion is: enough is enough. I urge the Government to seize the opportunity afforded by the Bill to restrict this misuse of NDAs.

[Baroness Goudie (Lab)]

My Lords, I support Amendments 98, 101 and 101A, and Amendment 101C, which is in my name. Also, I support my noble friends Lady O’Grady, Lady Kennedy and Lady Chakrabarti, and the noble Baronesses, Lady Morrissey and Lady Kramer, and the work they have done on these issues over the years. I thank Members of the other place for their support, including the meeting they called for us with Zelda Perkins last week, which was really helpful, and the organisations outside that have written to us all over a long period asking for support on this issue.

These amendments are all about harassment, which, surely, we are all against. If not, it is about time we were. Harassment includes sexual harassment and, surely, we are all very concerned about sexual harassment. It is obvious that we cannot combat sexual harassment effectively, which is what is required, if it is hidden from the light of day by being covered up by, or on behalf of, the perpetrator. We know that perpetrators get away and get jobs in other places. It is pernicious that all too often it is covered up and deliberately hidden from sight by so-called non-disclosure agreements. The title does not sound as objectionable as cover-up agreements, but that is precisely what they are. They are cover-up agreements, in intention and effect. They impose a positive obligation not to disclose what should otherwise be disclosed. They are pernicious, and bad apples in character. They perpetuate harassment. You can get away with harassment if you can secure a non-disclosure agreement by paying a bribe. Nothing could be more anti-social. Nothing represents a more toxic workplace culture or better ensures its continuation. Whistleblowers are silenced. If a disclosure is relevant, it should be disclosed—that is, a disclosure about harassment that has been committed, is being committed or is likely to be committed. They are all highly relevant exposures, which would thereby avoid harassment.

This is about ethical standards and workplace misconduct—indeed, gross misconduct. It is not about protecting confidential business information. I say that because that is important. We understand those non-disclosure agreements. This is about sexual harassment. On one hand, transparency and freedom of expression are virtues. On the other, confidentiality, privacy and the protection of personal data are virtues. There can be tensions between legitimate considerations that may tug in different directions. Balances have to be struck but—and it is a big “but”—that may not work well when one party is more powerful than the other. In the case of, for example, Harvey Weinstein, there may also be an important public interest in a disclosure. Non-disclosure agreements need to be properly regulated and not permitted to continue in the way they have and to have their chilling effects. This is especially so when the disclosure ban arises in the context of an employee and employer and/or relates to harassment, bullying or discrimination, including, importantly, sexual harassment, and intellectual property rights and competition considerations are not engaged. It is time to act to prevent the misuse and abuse of NDAs, which should not continue. It has continued for too long. I very much hope that the Minister will meet a group of us to see how we can consolidate a small amendment to the Bill that would strengthen it greatly.