Government to help whistleblowers

Non-disclosure agreements reviewed after Green case

Sir Philip Green

Sir Philip Green: used NDAs to silence staff


New legislation will prevent employers using ‘gagging orders’ to hide their abuse of employees.

Workers have been forced to sign non-disclosure agreements to prevent them reporting harassment or discrimination to the police or other authorities.

The issue was highlighted by the alleged behaviour of Top Shop tycoon Sir Philip Green who is said to have used NDAs to silence and pay off at least five members of staff who accused him of sexual harassment and racism. He was identified by Lord Peter Hain using parliamentary privilege.

He denied the claims but last month the High Court lifted an injunction, although the court refused to provide protection for his alleged victims who have signed NDAs.

The case has helped bring about early action to help whistleblowers report incidents of sexual harassment and bullying.

Measures to be introduced also include extending the law to ensure the worker agreeing to confidentiality agreements receives independent advice on the limitations.

Business Minister Kelly Tolhurst today announces proposals which will enshrine in law for the first-time that individuals cannot be prevented from reporting crimes, harassment or discrimination to the police. 

Many businesses legitimately use NDAs and confidentiality clauses in agreements to prevent disclosure of confidential information. However, in recent months there has been increasing evidence to suggest that NDAs and confidentiality clauses are being abused by a small minority of employers to intimidate whistleblowers, conceal harassment and discrimination incidents – including sexual assault, physical threats and racism.

The Department for Business, Energy and Industrial Strategy said today’s proposals will help put an end to the unethical use of these agreements and encourage good practice from employers and lawyers.

Prime Minister Theresa May said: “Sexual harassment is against the law and discrimination of any kind will not be tolerated – in the home, the workplace or in public. 

“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’re 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.”

Ms Tolhurst said: “Many businesses use Non-Disclosure Agreements and other confidentiality agreements for legitimate business reasons, such as to protect confidential information. 

“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.

“They will also help boost understanding of work place rights and legal responsibilities, all part plans to create a fairer workplace through our modern Industrial Strategy.” 

Evidence of the misuse includes examples where victims of harassment or discrimination have been silenced using the legal agreements, for example, suggesting that a worker cannot whistleblow despite the fact that no provision can remove a worker’s whistleblowing rights. 

In addition, through an NDA or Settlement Agreement, employers could insist that a worker is unable to discuss an issue with other people or organisations, such as the police, a doctor or a therapist. This can leave victims afraid to report an incident or speak out about their experiences, leaving others exposed to similar situations, and putting customers and other businesses at risk. 

The proposals set out today to extend the requirement to receive legal advice to cover limits on confidentiality clauses and that signatories must be provided with a clear overview of their rights that will help end this unethical practice.

Minister for Women and Equalities Penny Mordaunt, said: “Sexual harassment at work is illegal, yet this disgusting behaviour is something that many women still experience today.

“I want to make clear to anyone who thinks they can bully and harass people at work, the UK government, good employers and the public will not accept this. We will act to make sure that workplace rights are protected for everyone. 

“This is important for us all because unless every one of our citizens can reach their full potential at work, our nation never will.”

Ex-assistant to Harvey Weinstein, Zelda Perkins said:“I am very pleased that the Government is starting to take steps to deal with the misapplication of NDA’s. However, 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.”

Chief executive at the Equality & Human Rights Commission Rebecca Hilsenrath 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.

“We really welcome the measures set out today by the Government which will help to empower victims and ensure no one is forced to sign a gagging clause against their will.

“But regulating NDAs alone will not prevent workplace sexual harassment. To fundamentally change workplace cultures and ensure everyone enjoys a working environment that allows them to reach their full potential, employers must take steps to prevent sexual harassment from happening in the first place. We believe that such a duty should be made mandatory for all employers.”

See also: 

Kelvin quits Ted Baker as misconduct inquiry steps up

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