Non-disclosure Agreements in the Workplace

Debate between Baroness Harman and Peter Grant

Tuesday 5th September 2023 Westminster Hall

[Peter Grant (Glenrothes) (SNP)]

I was almost tempted to say to the hon. Lady, “Just carry on, and I won’t bother summing up.” I do not think that I have ever seen agreement among so many speakers in a debate, and I certainly do not expect to say anything that will change that.

I am not entirely sure what the comment by the right hon. Member for Romsey and Southampton North (Caroline Nokes) was about. If her point was about having to keep apologising to Front-Bench males for things that have to be said, she does not ever have to apologise to me for pointing out that I am part of the 49% who have caused most of this problem. Most of the speakers today are part of the 51% who have been on the receiving end of the problem, though they have not always been; there was a time when NDAs were routinely abused between powerful men to cover up each other’s crimes and frauds. Most NDAs now are being used by powerful men to silence and victimise vulnerable women, and that is the abuse of the system that must be dealt with most urgently.

[Ms Harman]

The hon. Member has demonstrated himself to be a male ally, and we would not underestimate the importance of having male allies on this. There is an opportunity for the Minister to be not a force of resistance but a male ally and to follow the example of the hon. Member for Glenrothes (Peter Grant).

[Peter Grant]

When I write my memoirs after I retire in a year or so, I will make sure to point out the time I got an honourable mention in dispatches by no less a person than the Mother of the House.

Just to reflect on some of what has been said, there is an absolutely legitimate need for confidentiality between employer and employee. Nobody is questioning that. Even after an employee has left employment, the employer is entitled to expect a degree of confidentiality and respect. The duty of care between an employer and employee in both directions does not just suddenly stop when the employee leaves.

But that duty of care—that right of confidentiality—can never, ever be justified if it is being used to prevent an employee from exercising the rights that this Parliament has given them as a matter of law: their rights to raise a grievance, to claim unfair dismissal and to get a fair hearing through the appropriate channels. It can never be justified if its intention is to cover up criminal conduct or other unlawful behaviour. In a great number of the cases that we have heard of—and no doubt many others that we have not heard of—where NDAs have been used to silence victims of workplace harassments, the behaviour is well above the threshold that constitutes criminal assault, and in almost all the other ones, it is well above the threshold that constitutes unlawful, unacceptable behaviour, so in almost every case we are talking about today, NDAs are being used to pervert the course of justice. We know that the law is being misused in this way; it is time to put that right.

We are not going to, in the next few years, address all the issues about mistreatment at work, or all the ways that mistreatment can be perpetrated and allowed to continue, but we should certainly be carrying on with the progress that has been made already and address as many as possible. Given the degree of agreement across the House, I hope the Minister will be listening and recognise that it this is an issue to be taken on quickly, because it is that will get unanimous—or near-unanimous—support across the whole House.

The right hon. Member for Basingstoke (Dame Maria Miller) mentioned the part that some professional societies have played. I think we need to get stronger with them as well. A number of professional regulators or chartered institutes should be told, “We want you to put into the code of professional ethics that knowingly misusing an NDA is gross professional misconduct, and that people will be struck off as a lawyer or banned from using the continuous professional development logo on their headed notepaper if they are found to be behaving in this way.”

I think that deliberately exploiting the fact that an employee probably does not fully understand their rights—that the employee is scared and wants to get away from the situation all together—to cajole them into signing something that is clearly against their interests is serious enough to be a criminal matter, rather than just a matter of employment law or of private civil law. It should not need the employee to find a lawyer who will represent them and take their case through the civil courts. Employers, business managers and company directors who deliberately exploit an employee’s ignorance and fear would be committing a criminal offence. They should be facing criminal sanctions, rather than, as has just been mentioned, a civil settlement that some would not notice if it disappeared out of their pockets every day.

Although I welcome the progress that has been made in the universities sector, and commend those who have brought forward private Members’ Bills to try to address these issues, we have not got time to go through one sector at a time, because while we are dealing with one sector, more and more people will be victimised in others.

I must say to the Minister, although I know that it has not been in his gift for all that long a time, why does it have to be left to private Members’ Bills? When the Government committed four years ago to legislate for this, why has nothing happened yet? It is not because there has not been enough Government time. There have been days when the House has collapsed three, four or five hours early, or days when the Whips have been running around, desperately trying to get people into the Chamber to intervene because the Government had reasons for not wanting the business to collapse before the advertised moment of interruption. If the Government were willing to put as much political determination into this as into other things, we would have it on the statute book already, but we do not. What better opportunity is there for a Minister to make their mark a few weeks before the King’s Speech?

The debate could not have been better timed—it is an opportunity for the Minister to make his mark. Who knows, he might be back as a Minister in the next Parliament. Nothing is guaranteed, although some things could be regarded as surprising, if the same party comes back into office—not the Minister personally, whom I have no doubt does a great job. Elections are never done deals until the votes are counted, so we never know; it might still be him or one of his colleagues after the election.

Mention has been made of the Public Interest Disclosure Act, which I remember being a huge fan of when it first came out. Previously, I worked in a finance position at the Fife health board. I had stories that I wanted to tell, but there was no one I could tell them to. Eventually I did; the stories were denied, but a few years later Fife health board ran into a financial black hole of £4 million at the time—in today’s money, probably up to £10 million. I had seen it coming, but I could not get anyone to listen to me.

Under the Public Interest Disclosure Act, someone else in such a position now would be able to ensure that the necessary people were made aware of it. That, however, applies only to disclosures by some people of some kinds of information to some recipients in certain circumstances; it is not a free-for-all. At the very least, we need to extend the Act to cover people who are not employed directly or are third parties, for example. We need to amend the law to make it explicit that anything that would be protected where someone is a contractor, supplier, business colleague or whatever continues to be protected afterwards.

We must remember that the Act explicitly does not protect vindictive or malicious disclosures. It does not protect someone who is touting a story around the tabloids to see which will pay them most. It does not protect those kinds of disclosures; it only protects disclosures where there is a genuine belief that the person is acting in the public interest, where there is a need to disclose in order to prevent criminal activity or serious damage to the public interest. Surely the same standard should apply after someone has ceased to be an employee. Surely it is right that an employee—or someone who is in effect an employee, because they work through an agency, on a zero-hours contract or whatever—even after they are no longer being paid by the employer, should still have the right to go to a recognised recipient, which is usually the relevant regulator or statutory body, to say: “This is what is happening in that organisation. I think that you need to take action.”

Before I wind up, I will give one example. Not surprisingly, we have focused on the misuse of NDAs to cover up cases of sexual harassment and sexual assault. I have heard one or two examples where they are used in other circumstances. I want to talk briefly about Rhona Malone, a police officer in Scotland. By all accounts, she was a dedicated and professional police officer, who should have had a bright career in front of her. She did, until she applied to join the Police Scotland firearms unit. She was told that she could not, because women cannot be firearms officers. She raised a grievance, but people tried to silence her: they offered her an NDA with an undisclosed, but frankly insulting, level of compensation. She stood her ground and took Police Scotland to a tribunal. Police Scotland has been ordered to pay the best part of £1 million in damages as a result.

I cannot go too much into the details of the argument, because I understand that one of the officers who testified at the tribunal has now been charged with perjury. The thing has become much more serious, and a number of things have come out. The reason she was not allowed to train as a firearms officer was that, in the eyes of senior people in Police Scotland, women are not capable of dealing with the physical demands of being a firearms officer or women on their period might get irrational so could not be trusted with a firearm.

Surely the person who exposed the fact that those attitudes were accepted in one of the major law enforcement agencies in these islands should be thanked. Surely she should be in line for an honour. Why on earth was she forced to leave the career to which she had dedicated herself? Why is possibly one of the best senior police officers of the future not there any more? What a loss to policing in Scotland and elsewhere. Yes, she had compensation, and yes, it is quite right that it should have been punitive libel, because how she was treated was utterly despicable, but why did no one senior in Police Scotland step in at some point to say, “We should not be trying to buy the silence of this officer. We should be sitting down to speak to this officer and to say thank you, because she has exposed something in our organisation that is utterly unacceptable, whether in a public or a private sector organisation”?

There is nothing that anyone has said in the Chamber today that I would meet with anything other than wholesale agreement. I suspect that the Opposition spokesperson, the hon. Member for Ellesmere Port and Neston (Justin Madders), will also agree with everything that has been said. I sincerely hope that when the Minister speaks he will commit to agreeing in not only his words but his actions. As I have said before, we are coming up to the King’s Speech, and some of us will be listening very carefully to what is in that speech.