Non-disclosure Agreements in the Workplace

Debate between Maria Miller and Gregory Campbell

Tuesday 5th September 2023 Westminster Hall

[Dame Maria Miller (Basingstoke) (Con)]

I beg to move,

That this House has considered the use of non-disclosure agreements in the workplace.

It is a great pleasure to serve under your chairmanship this afternoon, Ms Ali, for this important debate on the use of non-disclosure agreements in the workplace. I will start by talking about the importance of every one of us—each and every citizen of our country—to the productiveness of our society.

Working to support ourselves creates wealth. For those who are older or younger, it is an essential part of a vibrant and successful economy. We in Parliament agonise over producing laws to remove the barriers that can stand in the way of people going to work. We stop people being made redundant simply because they are pregnant, being fired for being too old, or being denied a job because they have a disability, and we stop employees suffering sexual abuse because of an abuse of power at work.

Yet we know from the evidence collected by organisations such as Pregnant Then Screwed, Maternity Action, WhistleblowersUK, Can’t Buy My Silence and many more that employers routinely use non-disclosure and confidentiality agreements to stop workplace wrongs being talked about, punished and put right. They use NDAs to silence employees who are fired or made redundant unlawfully. They stop them from seeking medical support for the psychological trauma that they have experienced, from taking action through employment tribunals, and in some cases from taking cases of criminal wrongdoing to the police. They remove people from their jobs with an exit agreement that includes a silencing clause, creating fear that talking about even illegal acts might mean they find themselves on the wrong side of the law, with the additional fear of having to pay back any payment they might have received when they departed from their job.

We know that there is a need for confidentiality at work. Routinely when we sign our contracts of employment there is a standard condition of confidentiality in the initial employment agreement. Some people therefore dismiss concerns about non-disclosure agreements because they know that NDAs can be unenforceable if they are put in place at the end of an employment contract. But most people are not legal experts. They cannot take the risk of being on the wrong side of the law and having to pay back any settlement agreement money, and employers know that.

The lawyers are part of the problem. The Solicitors Regulatory Authority has reminded all solicitors of their duty to uphold professional standards when dealing with NDAs. It issued a warning notice in 2018 that was updated in 2020. The SRA has been proactive and is to be applauded, but in reality the questionable usage of NDAs continues, first, because the SRA found that more than a third of law firms were not even aware of the 2018 notice—something that I am sure they are putting right—and secondly, because so many NDAs are drawn up by people who are not regulated by the legal profession, or maybe not regulated at all, and this is set to grow.

When I asked my office manager to ask ChatGPT to write me a standard UK severance contract after discrimination at work, a clause was automatically inserted that reads:

“Confidentiality: Both parties agree to maintain the confidentiality of this Agreement and not to disclose any details related to the discrimination claim or this Agreement to third parties, except as required by law”,

but no further details. How many people are now using these formula contracts as a matter of course? This might be the future of accessing legal expertise for many people, so we cannot rely on professional legal ethics and regulation to ensure that employers act in the right way. We need the law to be clear, too.

[Mr Gregory Campbell (East Londonderry) (DUP)]

I thank the right hon. Lady for giving way and commend her on securing this topical and timely debate. Does she agree with me about the costs? No matter where it occurs in what sector, when we get into the public sector, public moneys are expended by some large employers. The likes of the BBC employs NDAs against employees and then subsequent former employees to try to buy silence over an agreed contract.

[Dame Maria Miller]

The hon. Member makes an important point about the use of NDAs by large public bodies. He mentioned the BBC, and I could go on to mention other media organisations. Indeed, NDAs have been used routinely in this place in the past. Mr Speaker and others, however, have ensured that that practice has stopped—it is possible to stop such things, if there is a will from the top.

The Government already know the importance of that point. The Secretary of State for Science, Innovation and Technology, my right hon. Friend the Member for Chippenham (Michelle Donelan), with the backing of the Department for Education, put in place a voluntary university pledge to stop the use of NDAs in university settings. It became law under the Higher Education (Freedom of Speech) Act 2023, through an amendment made on 7 February, so Parliament has had its say and the Government have accepted that say, but only in connection with universities.

The pledge, when it was introduced, protected students, staff and others from the use of NDAs in cases involving sexual harassment, discrimination and other forms of misconduct and bullying. If such a ban is good enough for universities, I hope that the Minister will agree that we can see no reason why employees in other sectors should not be protected in the same way.

The Government must look at how they could provide the same safeguards as the universities now have across every workplace in Britain against agreements drawn up by lawyers and those not drawn up by lawyers, which I believe to be the vast majority. As part of the pathway that the Government will follow in the coming months to achieve that sort of change, I hope that they will also support my amendment to the Victims and Prisoners Bill, which would recognise people who have signed NDAs as victims too, for consistency.

NDAs are of particular concern to Parliament and parliamentarians, because they are disproportionately used to silence women and minority groups, flying in the face of anti-discrimination laws, which have been in place for decades. Women report signing NDAs at six times the rate for men, black women at three times the rate for white women, and, interestingly, at 40% of the rate for people with disabilities. People with disabilities suffer such NDAs far more than anyone else.

A third of the respondents to the Can’t Buy My Silence data collection in the UK are believed to have signed an NDA. Perhaps worse, another third did not go ahead with seeking the justice they were owed, because they anticipated having to sign an NDA and did not want to—for fear of the consequences perhaps. In their 2020 sexual harassment survey, the Government themselves, through the Government Equalities Office, reported that 48% of those who reported workplace sexual harassment were asked to sign a confidentiality agreement about their experience, whether staying at the organisation or exiting it. The Government are aware of the scale of the problem and they have legislated already, as a result of actions taken here in Parliament. We cannot let the status quo stand.

Given the nature of NDAs—their silencing properties and the secrecy that surrounds them—only as a result of the bravery of some who have endured NDAs do we know the damage that they are causing. I pay tribute to all those people—such as those in the Public Gallery and those Members—who have spoken out bravely publicly or privately on this matter. That includes the public reporting of the Independent Television News newsroom incidents, including multiple reports of NDAs by “Channel 4 News” and “Channel 5 News”.

A particular concern—the hon. Member for East Londonderry (Mr Campbell) has already made the point about media outlets—is that organisations that provide news for millions of viewers are using NDAs to cover up allegations of sexual harassment, disability discrimination, maternity discrimination and much more. Even after public reporting, those are yet to be resolved. The concern is that we rely on such news organisations to expose the truth, and yet all summer we have seen more and more media reports about the toxic environments that have flourished.

I too have been approached by a number of whistleblowers at a number of ITN newsrooms. Why? Because of the lack of transparency and the fear of speaking up created by the use of apparently legal confidentiality clauses or NDAs. I believe that NDAs have no place in British workplaces if they stop people from freely exercising their rights under the law.