Government to ban non-disclosure agreements used to silence workers subject to discrimination and harassment

Yesterday the Government backed a tabled amendment to the Employment Rights Bills that seeks to ban the use of non-disclosure agreements to gag employees who have been subject to harassment and discrimination (according to the EqA 2010) in the workplace.

NDAs is a catch-all term to describe any agreement containing confidentiality or non-disparagement clauses or used to describe those clauses themselves. These contracts or clauses restrict what a signatory can say, or who they can tell, about something.

The amendment seeks to insert a new clause which will render void any settlement agreement between an employer and a worker (current or former), that attempts to prevent the worker from making allegations or disclosures about harassment or discrimination.

Zelda Perkins, Founder of the campaign Can’t Buy My Silence UK, said:

This is a huge milestone, for years, we’ve heard empty promises from governments whilst victims have continued to be silenced, to see this Government accept the need for nationwide legal change shows that they have listened and understood the abuse of power taking place.

[…]

This is not over yet and we will continue to focus closely on this to ensure the regulations are watertight and no one can be forced into silence again. If what is promised at this stage becomes reality, then the UK will be leading the world in protecting not only workers but the integrity of the law.”

The amendment additionally allows for the Secretary of State to extend the voiding provision by Regulation to include individuals who worked as trainees and contractors.

Despite the original purpose of NDAs relating to the protection of IP and commercially sensitive information, over time they have become notoriously used to gag workers while settling cases concerning some of the most pernicious workplace misconduct.

In tabling these amendments, the Government hopes that this will allow victims to speak freely about their experiences and their employer able to support them publicly.

Deputy Prime Minister Angela Rayner said:

We have heard the calls from victims of harassment and discrimination to end the misuse of NDAs.

It is time we stamped this practice out – and this government is taking action to make that happen.

The Employment Rights Bill will ban any NDA used for this purpose, so that no one is forced to suffer in silence.”

Employment Rights Minister Justin Madders said:

The misuse of NDAs to silence victims or harassment or discrimination is an appalling practice that this government has been determined to end.

These amendments will give millions of workers confidence that inappropriate behaviour in the workplace will be dealt with, not hidden, allowing them to get on with building a prosperous and successful career.”

It remains unclear what the impact of this ban will be, and to what extent it will rebalance the power relationship, and limit employer coercion in workplaces. IER experts will monitor these changes as they take effect.