Non-disclosure agreements silence workers - time to change the law

Published date
12 Jun 2019
Too many employers are using NDAs to shirk responsibility for tackling and eradicating sexual harassment, discrimination and bullying at work.
  • Trade unions have long argued that non-disclosure agreements (or NDAs) prevent victims of sexual harassment, discrimation or bullying at work from having their voice heard.
  • Now a new report from the Women and Equalities Committee of the House of Commons has revealed that NDAs are being routinely used to cover up mistreatment at work.
  • The TUC is calling for a change in the law to make employers legally responsible for tackling sexual harassment at work.

Non-disclosure agreements silence workers. They stop victims of sexual harassment, discrimination or bullying at work from having their voice heard and from getting justice.

Trade unions have known this for a long time. After all, it’s union reps who have to deal with the bad bosses using NDAs to sweep institutional problems under the carpet.

The #MeToo movement also highlighted how NDAs and confidentiality clauses were used by powerful men to isolate victims of sexual harassment and drive them out of the workplaces.

So it’s about time our politicians realised that something must be done to stop employers using NDAs to cover up abuse.

And we think it's time to change the law so that employers are made responsible for tackling sexual harassment at work, not victims.

New report

A new report by the Women and Equalities Committee on the use of NDAs in discrimination cases is a step in the right direction.

It condemns the routine use of NDAs to cover up discrimination and sexual harassment and calls on the government to “reset the parameters” around the use of NDAs.

This is welcome progress, but it’s important to remember that NDAs and confidentiality clauses aren’t just used to cover up allegations of sexual harassment.

In fact, they have gagged workers who’ve experienced any and all types of discrimination.

Power imbalance

Unions tell us that in some sectors employers insist on confidentiality clauses before discussions on virtually all settlement agreements even begin.

And some workers are forced to sign an NDA just to get the job reference they need to make progress in their career. Employers are not legally obliged to provide a reference, so sometime the only way to get one is by agreeing to a restrictive confidentiality clause.

This is a power imbalance in the workplace that too many bosses are exploiting. Worse, it means wrongdoing is covered up and discrimination and harassment at work continues unabated.

There are times when confidentiality clauses can be useful, such as when workers want to keep certain details about themselves confidential. But they should only be used when workers choose to use them freely and willingly – and after they’ve had legal advice to inform that choice.

Misdirected energy

The WESC report highlights the lengths that some employers will go to force their employees to sign confidentiality clauses.

It references examples of large employers using “[their] significant resources to put considerable pressure on employees who pursue allegations of discrimination or harassment at tribunal – for example by making the process more protracted and difficult”.

Instead putting so much effort into gagging their workforce, we want employers to dedicate themselves to tackling and eventually ending harassment and discrimination at work.

Because how much better would it be for everyone if the time and money that is currently spent on silencing workers was spent on positive activity and support?

Change the law

There’s nothing stopping employers from doing this now. They could all make a real commitment to providing workplaces free from discrimination, victimisation and harassment today.

But building safer workplace isn’t something that we can leave up to chance – it shouldn’t be a lottery based on the goodwill and commitment of individual employers.

And that’s why we’re pleased that the WESC report has echoed a number of our recommendations for change.

Now the government must act and implement our demands, which include:

  • Changing the law to make employers legally responsible for taking meaningful steps to rid their workplaces of harassment and victimisation.
  • Enforcement with real teeth so that employers who refuse to comply suffer a financial hit large enough to compel them to take action.
  • Stronger legal protection from harassment from customers and other third parties at work.
  • An extension to time limits for lodging tribunal claims to help people access justice.

We can never tackle a problem as deep-rooted as harassment and discrimination while employers are free to sweep it under the carpet.

The solutions are clear. What victims need now is the political will to bring about the real change they deserve.