Non-disclosure Agreements in the Workplace

Rachael Maskell Excerpts

Tuesday 5th September 2023 Westminster Hall

[Rachael Maskell (York Central) (Lab/Co-op)]

It is a pleasure to serve under your leadership, Ms Ali. I congratulate the right hon. Member for Basingstoke (Dame Maria Miller) on eloquently opening the debate and making all the pertinent points as to why NDAs should be outlawed. It is very evident from what we have heard so far how they are used to hide discrimination and bad practice in the workplace. That is why I fully support her proposal and all the comments made across the Floor today.

I think we have learned, particularly in the last week, that creating secrecy in the workplace creates closed cultures and they can be incredibly dangerous environments. We heard yesterday in a debate in the main Chamber about seven consultants who blew the whistle. It would have been so easy to have silenced them with an NDA, and we have seen that right across the NHS. I will bring to this debate my experience from the health service, but also as a trade union official for many years, as to how NDAs have been used to silence people who are raising a concern and trying to speak truth to power, because ultimately this is all about power and control, and therefore we need to ensure that justice can be served in every environment and particularly in the workplace. We know that many people forced to sign NDAs are being forced out of organisations because they have had the nerve to raise concerns about what they have seen around them in order to make the work environment safer for themselves and others. They have shared those observations to see improvements in their organisation. It is not vexatious to raise concerns; it is the right thing to do and it should be encouraged. Not having laws to protect those individuals exposes them and brings about further risk.

As the Minister will know, I am bringing forward a Bill about bullying in the workplace and the cultures developed there—cultures of secrecy and of bad conduct and behaviour. There is certainly much to be done. Those people who experience the signing of an NDA are seeing a slamming of the door on not only their career but often their lives, leading to serious mental health challenges for many years. They have to live with the injustice they have been served for what is often a small sum of money to pay them off and buy that silence. We have to create open work places where we can have honesty, and raise concerns and see them resolved. Without that, we will enforce the negative cultures that we see in work practices today.

I refer to my entry in the Register of Members’ Interests—I should have said that earlier. When I was a union official, I saw many times how compromise agreements were a cheap option to try to buy people off, to move an issue sideways and to protect the perpetrator in the workplace. Even if people brought a case to an employment tribunal, a COT3 agreement would often be signed to bring a case to a conclusion. We have to look at that within the system as well. The purpose of such agreements is merely to shut down debate and move on, leaving a legacy for other people—the discrimination, poor conduct, assaults, harassment or discrimination that have already been experienced.

We should create an open culture so that no one fears raising concerns and people know they are working in a safe environment. A closed environment, as we have known in many contexts, is an unsafe environment. What we are discussing would make workplaces safer for everyone, not least those people who have experienced the most pernicious assaults as a result of the NDA process.

I look at what has happened across University Hospital Birmingham, where silence has been bought off individuals, and at the mental health trusts. There are questions across the piece at the moment about what is going on in those organisations, which are often very closed cultures in themselves. When concern is raised, individuals are invariably on sick leave as a result of the response that they get, and then they are bought—told that they cannot return, or their sickness brings them to that point. When someone is so weak and powerless because of what the organisation has done to their voice and agency, they will take a little scrap to try and rebuild and move forward.

Whether it is in healthcare, local government—we know it happens there—education or the police and justice system, we know that the issue is pretty prevalent. I ask the Minister: where is the data and the scrutiny over what is happening? Do we know the reasons why all those NDAs have been signed? Do we know the numbers in every sector? Do we know which employers are the perpetrators issuing NDAs? We need the data to legislate and to understand, but also to call out those employers using NDAs as part of their suite of employment policies. I also ask the Minister to dig deep into all sectors—not only the private sector, but the charitable sector and what goes on there. Some of the statistics may well surprise him.

We have to understand that the issue is about the impact on individuals as well as organisations. The right hon. Member for Basingstoke made a powerful point about the cost to organisations of being able to mismanage their staff in such a catastrophic way, but we also have to realise that that has an impact on not only the individual but their colleagues as well. Ultimately, it silences them, because they know what is coming next: their job will be on the line, and they will be managed out of the organisation one way or another.

This closed-culture mentality must be prised open by the Government and we must do everything we can. We are in a space where organisations fear the reputational damage and fear what is happening at the moment. Let us get the data and the legislation in place to ensure that we are not only tackling poor conduct but advancing good conduct in the workplace, so that every worker can be safe.

[Several hon. Members rose—]