Non-disclosure Agreements

Martin Wrigley Excerpts

Wednesday 2nd April 2025 Westminster Hall

[Martin Wrigley (Newton Abbot) (LD)]

It is a pleasure to serve under your chairmanship, Mr Betts. I congratulate the right hon. Member for Sheffield Heeley (Louise Haigh) on securing this important debate.

We have heard from Members how widespread this issue is: we heard about the hospitality industry and the creative industries, we just heard about teachers, and the hon. Member for Congleton (Mrs Russell) told us that it occurs in every HR department. I am horrified that it also happens in the NHS. I was approached by a constituent whose employment as an NHS nurse was terminated, but I do not know many of the details, because she cannot speak to me about it. Her employment was terminated due to—how can I put it best?—a medical condition that she suffered and is now over, but she cannot talk about it, and it has given her issues ever since. I do not know how many people in my constituency fall into that category, because, as the right hon. Member for Sheffield Heeley said, they cannot talk to us about it.

[Mrs Russell]

Typically, the agreement’s wording will contain an exemption for whistleblowing—the Solicitors Regulation Authority says it must—so the chances are that the hon. Gentleman’s constituent can actually talk to him about the details, and he can refer to it under parliamentary privilege. However, most people do not fully understand the relationship between the whistleblowing exemptions—they are extremely limited and tightly drafted and say that someone can only speak to very limited people in very limited circumstances to whistleblow in line with the law—and the broader statement that I referred to: “You cannot discuss the circumstances surrounding your employment.” Unless someone has had good legal advice that makes that really clear, and they can retain that quite sophisticated combination, they do not understand. The exemptions that we have just do not work.

[Martin Wrigley]

I fully agree. Absolutely—people do not know what they can do.

Will the Minister investigate how widespread the use of NDAs is in the NHS? Given that it is probably in the Government’s power to ban it in the NHS without primary legislation, will he take steps immediately to have it stopped and seek what recompense is required for those who have suffered it?

I agree absolutely that this practice must be stopped entirely. It is just one of many poor practices that are carried out by some businesses—not all, but some—often unwittingly. That is why I introduced my Company Directors (Duties) Bill, which will have its Second Reading debate on 4 July. Right now, the company directors’ duties say that they must put shareholder interests first and might have regard to other things. My Bill—I hope the Minister will consider working with me on making it happen—would change company law so that directors have a duty to balance the interests of shareholders, employees and the environment. I seek the support of Members present to make the Bill law; I hope that we can have further discussions to see what we can do to get it into the Government’s schedule. Until we put that balance at the foundation of the company directors’ duties, it will be impossible to get rid of circumstances, such as those the hon. Member for Congleton described, where company directors behave badly.

I fully support the right hon. Member for Sheffield Heeley on all the issues that she identified and will happily engage and do whatever I can to advance work on them.

[Mr Clive Betts (in the Chair)]

The Front-Bench speeches will need to start by 10.28 am. I call the Chair of the Women and Equalities Committee.

--- Later in debate ---

[Justin Madders]

I shall come on to the action that we are taking a bit later. None the less, that is an important point: there are legitimate uses for NDAs and it is important that we get that balance right, making sure that those commercial and legitimate business interests are protected while, at the same time, not deliberately silencing victims. NDAs should never be used to silence victims of harassment or any other misconduct in the workplace.

There are important legal limits to the use of NDAs in the employment context. Any clauses of an NDA that were to stop a worker from blowing the whistle, for example by making a protected disclosure to a lawyer or a prescribed person, are not enforceable. The use of an NDA by an employer could also amount to a criminal offence if it is an attempt to pervert the course of justice or conceal a criminal offence. A settlement agreement under the Employment Rights Act 1996 and any confidentiality clauses it contains would be void if the worker did not receive independent advice on the terms and effects of that agreement.

The Equality and Human Rights Commission and the Advisory, Conciliation and Arbitration Service have both published guidance on NDAs to ensure that workers and employers understand those limitations, but we have heard from many hon. Members that the guidance is not being observed in practice as much as we would expect. My right hon. Friend the Member for Sheffield Heeley mentioned the guidance from the Solicitors Regulation Authority, which has issued an updated warning notice to remind the legal profession that NDAs should never be used to try to prevent the lawful disclosure of serious misconduct or potential crime. The SRA is also clear that evidence of the use of inappropriate clauses in such agreements may lead to disciplinary action.

Nevertheless, we hear the calls to go further, and the issues raised today highlight some of the key areas that we want to further investigate. It is clear that there are still serious concerns about how employers are using NDAs to silence employees. We have heard today that victims often feel that they are left with little choice but to leave their employer, without any assurance that their employer is addressing the misconduct and dealing with the perpetrator.

[Martin Wrigley]

Does the Minister agree that we need to change the social contract for companies such that they no longer take all the benefits of limited liability and simply focus on shareholder value? Will he support my better business Bill—the Company Directors (Duties) Bill—which will have its Second Reading on 4 July, and meet me to discuss it? The Bill is backed by some 3,000 businesses, the Institute of Directors and others. As I mentioned, it would balance the responsibility of company directors with the interests of shareholders, employees and the environment; fundamentally change their basic responsibilities in how they run their companies; and therefore turn the purpose of the company to good, including that of the employees. It would prevent many of the circumstances that we are describing today.

[Justin Madders]

I have not seen the hon. Member’s Bill, and I suspect that its application is rather broader than just to the topic we are debating. We are looking at corporate governance, and in due course we intend to introduce legislation that may pick up on a number of the issues addressed by his Bill.

As we have touched on, a number of recent reports, such as the Women and Equalities Committee’s “Misogyny in music” and the Treasury Committee’s “Sexism in the City”, highlight that NDAs do not stand up in a court of law and are often used to chill victims.

The hon. Member for Guildford (Zöe Franklin) spoke about the good work of the Creative Industries Independent Standards Authority. I understand that the Culture Secretary recently met the authority to discuss how they can work together to improve workplace standards and behaviour in the creative industries. We want to support the authority moving forward; that is a matter for the Culture Secretary, and I am sure that she continues to engage with it.