ND Days are over?

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Following our blog in June, Non-disclosure agreements: use or misuse?, our Paralegal, Garyn Young, takes a further look at misuse of Non-disclosure Agreements (NDAs).

Non-disclosure agreements have routinely been used to stop departing employees share secrets. When used properly, NDAs enable organisations to protect its confidential and sensitive information from being divulged. However, according to Chair of the Women and Equalities Committee, Maria Miller, NDAs are increasingly being used to ‘cover up unlawful and criminal behaviour’.

Abuse of NDAs has been climbing the agenda of politicians for some time with several high-profile incidents bringing the issue to the fore and the #MeToo movement. Bosses have been accused in high profile cases and on numerous occasions of using clauses to silence victims of workplace abuse and is a misuse of power.

Dozens of academics wrote to the BBC earlier this year describing how they were aggressively harassed out of their job roles and forced to sign NDAs after raising complaints of discrimination, bullying and sexual misconduct. The academics highlighted their individual experiences and how the abuse of these agreements had a destructive effect on their mental health.

Another incident which propelled NDAs into the heart of public discourse was the controversy surrounding Sir Phillip Green. Sir Philip was accused of alleged sexual harassment and racist behaviour by employees. Their NDAs sat at the heart of this incident as they were used to prevent the publication of the details of these allegations by the Daily Telegraph. It was Lord Hain, protected by parliamentary privilege in the House of Lords, who publicly disclosed the name of Sir Phillip Green in relation to these allegations.

Most recently, the Labour Party has been accused of misusing NDAs in the ongoing dispute over anti-Semitism in the party. It’s Labour Party policy to legislate to stop firms misusing NDAs to cover up racism, sexual abuse or illegality. However, prior to the airing of the BBC Panorama investigating the party’s alleged anti-Semitism, the party instructed lawyers to remind former employees featuring on the documentary of their ongoing obligations under their NDAs. This decision and the apparent hypocrisy sparked outrage across the political spectrum and highlighted, once again, the need for greater statutory guidance and protection for employees subject to NDAs.

Now, the government has announced its intention to legislate in this matter. Under proposed new laws, employers will no longer be able to restrict employees from disclosing information to the police, doctors or lawyers. Business Minister, Kelly Tolhurst, announced that the government would no longer tolerate the use of NDA’s to ‘silence and intimidate victims to stop them speaking out’. The current proposal lacks detail, but appears to restate and clarify beyond doubt existing legal principles that reporting of criminal conduct or providing evidence in criminal proceedings cannot be prevented, and the making protected disclosures cannot be prohibited. The current controversy of using broad NDAs, and new legislation limiting their use may mean that the future use of NDAs may become less common and even avoided for the most sensitive cases, such as those involving allegations of bullying and harassment of any kind.