Laws on non-disclosure agreements to change

Laws governing the use of non-disclosure agreements could be changed, following a number of high-profile cases where they were used by influential figures to conceal sexual harassment claims.

New proposals to be unveiled by the government this week would prevent employers using gagging clauses to conceal sexual harassment, intimidation and racism complaints.

The Guardian says “ministers have decided to act following high-profile cases including that of Sir Philip Green, chairman of Arcadia Group, who is alleged to have used NDAs [non-disclosure agreements] to prevent several former employees from speaking out about their experiences of bullying and sexual assault”.

Subscribe to The Week

Escape your echo chamber. Get the facts behind the news, plus analysis from multiple perspectives.

SUBSCRIBE & SAVE

Sign up for The Week's Free Newsletters

From our morning news briefing to a weekly Good News Newsletter, get the best of The Week delivered directly to your inbox.

From our morning news briefing to a weekly Good News Newsletter, get the best of The Week delivered directly to your inbox.

Sign up

The Financial Times says the case “has started a public debate about the effectiveness of such gagging clauses and when they should be used”.

The new changes, which follow recommendations by a committee of MPs, “could help eliminate clauses within some NDAs that strip women of their pay-offs if they go to the police after they have signed settlement agreements” says the Daily Telegraph, which first reported the Green allegations.

Announcing the move as part of a wider plan to increases fairness in the workplace, business minister Kelly Tolhurst said:

“Many businesses use non-disclosure agreements and other confidentiality agreements for legitimate business reasons. What is completely unacceptable is the misuse of these agreements to silence victims, and there is evidence that this is becoming more widespread. Our proposals will help to tackle this problem by making it clear in law that victims cannot be prevented from speaking to the police.”

However, Geoffrey Robertson QC, who has called for a change in the law, said the proposed legal changes alone would 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 Telegraph.

“Any reform must be about freedom of speech – the right of an employee to reveal disgusting behaviour without being injuncted, i.e. gagged, or sued for damages,” he said, arguing the government should legislate for “a public interest defence to breach of confidentiality actions, which are the actions used by Sir Philip Green and others”.