The government has announced proposals to prevent employers from using gagging clauses to stop people reporting criminal behaviour, harassment or discrimination to police.
Ministers have decided to act following high-profile cases including that of Sir Philip Green, the chair of Arcadia Group, who is alleged to have used non-disclosure agreements (NDAs) to prevent several former employees from speaking out about alleged experiences of bullying and sexual assault.
Many organisations use NDAs to protect confidential commercial information. The Department for Business, Energy and Industrial Strategy said there was growing evidence of the unethical use of NDAs by a small minority of employers to intimidate whistleblowers and conceal harassment and discrimination, including sexual assault, physical threats and racism.
The business minister Kelly Tolhurst said: “What is completely unacceptable is the misuse of these agreements to silence victims, and there is increasing evidence that this is becoming more widespread. Our new proposals will help to tackle this problem by making it clear in law that victims cannot be prevented from speaking to the police or reporting a crime and clarifying their rights.”
There will be clarification in law that NDAs cannot be used to prevent workers from whistleblowing or to stop them discussing an issue with police, a doctor or therapist. Workers who are asked to sign must also have independent advice.
Theresa May said: “Over the past couple of years we have seen brave individuals breaking silence on such behaviour, but too many are still facing the unethical misuse of non-disclosure agreements by their employers. We are sending a clear message that a change in the law is needed to ensure workers are able to come forward, be aware of their rights and receive the advice they need before signing up to them.”
Zelda Perkins, a former assistant to Harvey Weinstein, who had to sign an NDA when she left Miramax Films in the UK, welcomed the measures but called for more. “I hope these steps will turn into larger strides of legislative change which will put an end to the powerful using the law as a tool of abuse,” she said.
Rebecca Hilsenrath, the chief executive of the Equality and Human Rights Commission, said: “The landscape of women’s employment has been littered with the misuse of NDAs in order to hide harassment, protect perpetrators and silence victims.”
She said regulating NDAs alone would not prevent workplace sexual harassment, and she called for a mandatory duty on all employers to prevent such harassment happening in the first place.
The TUC’s general secretary, Frances O’Grady, said the government’s “piecemeal approach doesn’t reflect the scale of the problem”, and the measures were not “a serious attempt to change workplace culture”.
“Limiting use of NDAs is just one piece of the jigsaw. If the government was serious about tackling sexual harassment at work it would legislate to ensure responsibility for prevention with employers, not victims,” O’Grady said.
Geoffrey Robertson QC, who called for a change in the law after the Daily Telegraph reported the allegations made against Green, said the proposed changes did not go far enough.
“They only allow complaints to the police, who will not act on most of them because casual sexism and racism may not always amount to a criminal offence. You cannot prosecute a culture,” he told the Sunday Telegraph. He said the government should legislate for a public interest defence to breach of confidentiality agreements.