Non-disclosure Agreements in the Workplace

Layla Moran Excerpts

Tuesday 5th September 2023 Westminster Hall

[Layla Moran (Oxford West and Abingdon) (LD)]

It is a pleasure to serve under your chairmanship, Ms Ali. I start by congratulating the right hon. Member for Basingstoke (Dame Maria Miller) on securing this important debate. As we have heard, non-disclosure agreements were designed as a legal tool to protect trade secrets, but they have a dark side. There is now overwhelming evidence that they are being used to cover up bad behaviour, and buy victims’ silence. They have become insidious and pervasive. One survivor described it as

“a way of companies and people avoiding accountability”.

NDAs can take many forms. They can be stand-alone agreements or a single clause subtly included at the end of a contract generated by a lawyer or anyone else. The effect is what is important. An NDA for these purposes should be defined as any clause that has the effect of gagging a victim. It is usually in perpetuity, which itself is extraordinary when thought about in legal terms. It stops them speaking about their experiences for ever more.

Many NDAs are not legally enforceable, but the victims I have spoken to would not have a clue. They never have a clue—and I am not sure I would, frankly. I am not a lawyer. If I were given something on official headed paper and told that someone knowledgeable had looked at it and thought it was the best thing for me, and I was at my wits’ end at the end of a discrimination case, I would just want it all to go away, too. That is tempting, and we can understand why people in that moment—when presented with that way out—take the money, sign the NDA and run.

However, we also know that NDAs hold immense power over victims. Often many years later, long after the effects should have been forgotten, they are retraumatised over and over again. Imagine someone facing a discrimination charge at work who has had to leave. They then have a further interview where they are asked about why they left, and they cannot say. Over and over again, forevermore, they are forced to remember. Many are victims of NDAs; I put it in those terms specifically because NDAs themselves cause harm. The point is made by the right hon. Member for Basingstoke in her amendment, which I very much support, to the Victims Bill: in these cases, it is the NDA itself—the silencing—that is traumatising.

I was involved in this campaign initially through students. I am delighted that through cross-party support we had an amendment accepted to the Higher Education (Freedom of Speech) Act 2023; that is amazing. One of the young women I spoke to was a victim of sexual assault in her college. She was assaulted by another student. She was presented with what looked like an official document—it was not actually a legal document at all, but she did not know any different. There was essentially a gagging clause. Some clauses said that the assailant was not allowed into her accommodation or where she ate, which we absolutely support. However, a final clause said that she could not speak about her experiences publicly at all. When it was discussed at the time, it was sold as a way to protect her reputation. She should not have been talking about it on social media or Lord knows what damage it would cause to her later. Not only is that infantilising to a women—albeit a young woman, but an adult woman none the less who has the right to make her own decisions—but let’s face it: the reputation being protected in this case was that of the university and the college.

[Dame Maria Miller]

I thank the hon. Lady for giving way and for her support today. She talks about the importance of protecting reputations. The reason why employers sometimes say that they want a non-disclosure agreement signed is that it will save an individual leaving a company and starting to talk badly about those left behind. Surely, we already have laws on defamation that cover that, so that is not a very good argument. Does she agree?

--- Later in debate ---

[Layla Moran]

I absolutely agree with the right hon. Lady. The problem is that the clauses are so wide-ranging; they are often not specific about time or what exactly they are allowed to say. We are not talking about any kind of confidentiality for when people are going through mediation, because that is time-limited; that is obvious. If mediation is going on, there would be a period where both parties would be asked not to talk about it. That is not what we are talking about here. The right hon. Lady and I have had a lot of engagement on this issue, and others have too. We have gone through every argument. There is an answer to every single rebuttal now. We have explored the logic. There is only one thing left to do.

We are falling behind. Other countries are ahead of us now, particularly in North America. Prince Edward Island in Canada has passed legislation that has essentially done what we are discussing. It is new, but it seems to be working. There is also the Speak Out Act in the USA, which was passed in 2022. It prohibits non-disclosure and non-disparagement clauses being agreed to in disputes involving specifically sexual misconduct. Other countries are also moving in that direction. We have seen a watershed moment following incredible campaigning by Zelda and others that is now forcing the issue, and we are falling behind as a nation.

We have golden opportunities in front of us. We have the Victims Bill; I urge the Government to look at the right hon. Lady’s amendment. I have also put one down that does the obvious thing of mapping the language in the Higher Education (Freedom of Speech) Act on to the Victims Bill. Given that people who sign these types of NDAs are victims, I think it is in scope. Either way they are complementary, but the Government need to do something that is not sector by sector. It should not affect one place or another. There is a bizarre idea that if an academic is living next to someone who works in a shop in my constituency, the academic is covered, but the person who works in the shop is not. Come on!

The Government have to do something—if not what we have suggested, then what? I have tabled a private Member’s Bill and the King’s Speech is coming, so the Government can borrow it if they want—I am sure that they will come up with their own—but doing nothing is not an option.

I will end simply by lending my voice to one of the victims, who signed an NDA and said:

“I relinquished the right to speak my truth; to reach out to and support other employees who were experiencing the same mistreatment that I faced.”

I very much hope that in his closing remarks the Minister will think of those victims and those people who are trying to do good. He will find that many people are willing to have his and the Government’s back if they decide to move, and it would not be before time.