Non-disclosure Agreements in the Workplace

Debate between Baroness Harman and Maria Miller

Tuesday 5th September 2023 Westminster Hall

[Dame Maria Miller]

The hon. Gentleman brings up an important point. How employees are treated goes to the very heart of the culture of an organisation; we can judge an organisation on how it treats the people who work for it.

My strong feeling is that we need to show leadership on the issue of NDAs. We need to make it clear from this place that such agreements have no place in the British workplace. It is regrettable that some organisations appear to be using NDAs to silence their employees. I sometimes wonder how transparent that is to the management of the organisations. Senior managers need to be asking some serious questions of their HR departments about how such agreements are drawn up.

[Ms Harriet Harman (Camberwell and Peckham) (Lab)]

I thank the right hon. Member for her initiative in bringing forward this debate; I absolutely agree with every word that she has said and how she has put the case. I say to the Minister that if he does what the right hon. Member is asking, we will give our full support. At this stage in a Government it is sometimes difficult to do good, but if he accedes to the right hon. Member’s proposals he could do a major piece of good.

Non-disclosure agreements are unfair on the individual. As the right hon. Member said, backed up by figures, they double down and are a ratchet on discrimination. As she also said, they are perilous for the organisations, as covering up wrongdoing introduces rot. Whatever words, written by the civil service, are in the Minister’s extremely good brief, he should have a think about doing this. He will get wholehearted support from us. The right hon. Member is putting forward a really sensible case, and I thank her for that.

[Dame Maria Miller]

I thank the right hon. and learned Lady, the Mother of the House, for those kind words of support. This is not a political issue; that is really important.

I couched my opening statement in terms of productivity because what really offends me to the core is that good people are being put out of employment for the wrong reasons. That often undermines their confidence and career in a way that they find it difficult to come back from, although there are notable examples of when that has not been the case.

I am thinking in particular of the evidence given to the Women and Equalities Committee for our maternity discrimination report, in which the hon. Member for Birmingham, Yardley (Jess Phillips) played a part. We heard about people being pushed out of employment simply because they were pregnant. They then found it very difficult to get back into work afterwards. The issue has real consequences for our economy. I know that the Minister feels strongly about the importance of productivity; what we are discussing is part of the piece that we need to get right.

Can’t Buy My Silence, the organisation that brought in the universities pledge, is working on a similar voluntary agreement for businesses to stop using inappropriate NDAs; perhaps that fills a vacuum created by the many consultations going on at the moment, in both Government and other organisations. That business pledge is to be welcomed. The organisation has been shown to be powerful in turning its words into law. The pledge commits a business not to using non-disclosure agreements or clauses to silence people who raise complaints of sexual harassment, abuse or misconduct, discrimination, retaliation, bullying or other harassment, at the point of hiring, at termination or at any other stage. The organisation, very ably led by Zelda Perkins, has secured its first supporters, including a law firm, which I think shows the strength of the way the pledge has been put together and put to businesses.

When the Secretary of State for Science, Innovation and Technology, in her time as Minister responsible for higher education, brought in the universities pledge, she said of the use of NDAs that she was

“determined to see this shabby practice stamped out on our campuses”.

I hope that the Minister replying today—I know my hon. Friend well—will wish to see this shabby practice stamped out across the whole economy, too.

Most confidentiality agreements are put in place by people other than lawyers. Other regulatory bodies have issued guidance on NDAs, as we would expect. Acas advises that NDAs should not be used

“to cover up inappropriate behaviour or misconduct, especially if there’s a risk of it happening again”.

The Chartered Institute of Personnel and Development, the body for human resources professionals, recognises that NDAs should not be used to silence people in situations of harassment, discrimination or bullying and organisations should never exert pressure on someone to sign. But the evidence of the scale of the problem shows that the advice is simply not cutting through—it is not enough. Many employers relying on the online model agreements to which I referred earlier are simply perpetuating a cycle in which NDAs, confidentiality clauses, are seen as the norm, to silence victims of wrongdoing. Therefore it is time that we turned advice and encouragement into law—I think there are very clear indications that organisations such as the Bar Council are also seeing that as the way forward and I am sure the Minister will be aware of that—so that apparently legal clauses in legal contracts cannot be used by anyone, lawyer or not, to cover up illegal wrongdoing at work.

My determination to see change on this issue stems in no small part from an interview that I saw with Zelda Perkins on “Newsnight”, which was followed by the 2019 report by the Women and Equalities Committee—I chaired it at the time—on non-disclosure agreements. The evidence given to the Committee during that inquiry left me in absolutely no doubt that this was an issue largely under the radar and urgently in need of legislative solutions. The debate today is to remind the Government of the issue and of the need to act.

I believe in a fair society in which each of us has the opportunity to reach our potential, especially in education and in work; that is the society that we should all be striving for. Equally, I believe that it is the role of Parliament to remove the barriers that people encounter in achieving that aim. Non-disclosure agreements are a barrier to people reaching their full potential at work, a barrier to fairness and a barrier to the laws that we pass in this place working in practice. They must be outlawed where they cover up illegal wrongdoing. I hope that the Minister replying today can agree that the status quo is not an option.