Non-disclosure Agreements in the Workplace

Jo Gideon Excerpts

Tuesday 5th September 2023 Westminster Hall

[Jo Gideon (Stoke-on-Trent Central) (Con)]

I am very grateful to my right hon. Friend the Member for Basingstoke (Dame Maria Miller) for securing this important debate.

Perhaps the debate should have been titled, “The misuse of non-disclosure agreements”. As has been said, NDAs were originally intended to protect sensitive corporate information, but sadly they have morphed into a disturbing tool that is used to conceal wrongdoing and silence victims. Instead of protecting the innocent, NDAs have been weaponised to shield the guilty.

Although employment tribunals are an option for seeking justice, they often fall short in addressing the underlying issues. Primarily, they focus on whether the employer’s actions were legally justified rather than on tackling the root causes. Whistleblowers have only that route to remedy their losses. With no route to ensure that their concerns are acted on, they no protection from retaliation, as all protection is retrospective.

It is clear that our current legal framework has proven ineffective in protecting whistleblowers and has neglected the very public interest that it was designed to safeguard. However, it does not stop there. The use of NDAs extends beyond workplace harassment; it reaches into the realm of whistleblowing, which is crucial for the protection of our democracy and public interest.

As part of the all-party parliamentary group on whistleblowing, I am very aware that NDAs are all too often used to protect an employer’s reputation and the career of the wrongdoer, rather than the victim. Few signatories of NDAs are offered alternative ways to protect their own privacy without protecting the rights of the guilty party; few signatories of NDAs understand that they are signing away their right to talk about their experiences forever. Most signatories of NDAs profess to feeling guilty and even complicit, and of being unable to warn others as a consequence of their NDA. Often, signatories continue to be victims in the future. For example, when they are looking for new employment, they are unable to explain why they left their previous role. That makes it incredibly difficult to find a new job and many whistleblowers never work again in their chosen profession.

I am sure we all agree that whistleblowers who come forward with evidence of wrongdoing should be celebrated and not silenced. Many non-profit organisations, such as Whistleblowers UK, work hard to advocate for the fact that whistleblowers play a vital role in exposing corruption, safeguarding public funds and ensuring transparency in both the public and private sectors. Shamefully, a third of all universities in England have used NDAs in circumstances relating to student complaints. I am glad that has been addressed recently by the Higher Education (Freedom of Speech) Act 2023 and I call on the Minister to recognise the support from across the political spectrum for doing what is right and reviewing the flaws in the legal framework.

I turn to a slightly different issue. Imagine a scenario in which serious structural issues appear in a property on a residential development within the 10-year period of a builder’s guarantee. Those issues are likely to have been caused by subsidence linked to inadequate preparation of the entire site prior to building, which is the developer’s responsibility. A homeowner might think that they are doing the right thing by highlighting the situation, believing that truth and justice will prevail. However, to close down any discussion about the wider implications, they may be silenced with a settlement and an NDA. By the time the subsidence becomes visible in the other properties, the developer’s guarantee period has elapsed and they can deny responsibility for the ensuing trauma that is caused to the entire community of people whose properties are blighted. Voices are silenced, stories are buried and grievances are ignored. That is not justice; it is a miscarriage of our values and principles.

Any protections intended by PIDA, which has been in place for 25 years, have failed, because the process incentivises settlements and confidentiality clauses. In 25 years, not a single case has been passed to law enforcement to investigate the allegations or evidence of wrongdoing. The legislation proposed in the Whistleblowing Bill includes provisions to tackle the misuse of NDAs. It goes further by introducing legislation that would ensure that concerns are investigated, that those responsible are held to account, that NDAs are used properly and not to suppress wrongdoing, that a mechanism is put in place for police compliance, and that whistleblowers are protected from the unscrupulous practice of imposing gagging orders on anyone. This is why the Whistleblowing Bill is a crucial part of legislation that can bring about positive change. It represents an opportunity to improve the safety of everyone in our communities and to demonstrate the Government’s commitment to support for our citizens’ army of whistleblowers, who are the first line of defence against crime, corruption and cover-ups. It is our duty to protect those who speak up for what is right and to ensure that no one is silenced in the face of wrongdoing. I call on the Minister to listen to the suggestions made here today.