Non-disclosure Agreements in the Workplace

Mary Robinson Excerpts

Tuesday 5th September 2023 Westminster Hall

[Mary Robinson (Cheadle) (Con)]

It is a pleasure to serve under your chairmanship, Ms Ali, and to follow the excellent speech of the hon. Member for York Central (Rachael Maskell). I am so grateful to my right hon. Friend the Member for Basingstoke (Dame Maria Miller) for introducing this important and timely debate and for setting out the case, which I hope the Minister has listened to, for ending the practice of using NDAs once and for all.

Non-disclosure agreements, also known as confidentiality agreements and gagging clauses—they have a whole host of names—are legal contracts setting out how and what information can be shared by its signatories. I accept that these clauses can have legitimate purposes in business to manage commercially sensitive information, intellectual property and trade secrets. However, that should surely be the extent of their usage. All too often, the agreements are instead used to prevent people from speaking up about mistreatment, harassment or wrongdoing, particularly in the workplace.

As chair of the all-party parliamentary group for whistleblowing, I have heard first hand from whistleblowers about how organisations use NDAs as part of settlement agreements following an attempt by an employee to do the right thing: raise concerns about wrongdoing. In every case, there is one thing in common: not only did the whistleblowers feel obliged to sign the NDAs, without necessarily fully understanding them in some cases, but their own lawyers reminded them of their legal duty to remain silent once they did.

Some might argue that whistleblowers are protected by law already, but we know that our existing laws are not working and that they are exclusive. The UK’s existing whistleblowing legislation—the Public Interest Disclosure Act 1998, or PIDA—only protects in law disclosures showing a criminal offence, a failure to comply with legal obligations, a miscarriage of justice, endangerment of health and safety, damage to the environment or the concealment of any information relating to the above. Section 43J of PIDA states:

“Any provision in an agreement to which this section applies is void in so far as it purports to preclude the worker from making a protected disclosure.”

What that means in theory is that a confidentiality clause or an NDA that seeks to prevent employees from blowing the whistle should be void under PIDA because under this law we cannot take away a person’s right to make a protected disclosure. However, the problem is still carrying on and it raises a number of issues. First, PIDA has extremely limited scope and applies only to workers and their employers. It also does not cover all people who may work for organisations, such as contractors, volunteers or trustees, or other people who may reasonably gain information that it is in the public interest to disclose: family members, customers and, in the case of health and social care, patients.

Secondly, we know from the many whistleblowing cases that result in detriment and dismissal that employees who speak out are not sufficiently protected by our existing laws. The cycle of a worker bringing forward allegations of wrongdoing only to be dismissed, and having to fight their dismissal at an employment tribunal, is all too common. When they get to tribunal, they must fight for their own employment—their own rights—not the whistleblowing issue that they first raised. Only 12% of these whistleblowing cases are successful at tribunal, so where is the incentive to do the right thing? For many would-be whistleblowers, this likely outcome may persuade them down the route of agreeing to an NDA—and the cover up is complete.

There is also the issue of people not knowing what constitutes a protected disclosure in the first place. In many cases, PIDA would not clearly apply to the things they report, such as a toxic environment or a moral or ethical wrong, and once an NDA has been signed there begins the constant fear of the consequences of breaking it: fear of the risks of breaking the silence, fear of the cost of prosecution. That means that NDAs are a very effective tool for silencing whistleblowers. As a consequence, the wrong goes unpunished, and the cloak of cover-up allows wrongdoing to continue.

One person who was brave enough to break free of the binds of an NDA and speak out was a whistleblower who defied an agreement signed with Hollywood film-maker Harvey Weinstein. By speaking out, she exposed Weinstein’s predatory behaviour, and his extensive history of sexual harassment and rape soon became public. He is now serving decades in prison, and she continues to fight for an end to the misuse of NDAs, through her campaign Can’t Buy My Silence. She deserves our praise and thanks for that.

Speak Out Revolution, which works with Can’t Buy My Silence as a data partner, is actively collecting workplace bullying and harassment experiences from members of the public, and compiling information and statistics. Based on those submissions, 63% do not formally report their workplace bullying or harassment experiences to their organisation. Of those who do, just 3% reach a full resolution. It is five times more likely that a person’s experience will become worse as a result of a formal report. Further, at least a quarter of respondents had signed an NDA. With statistics such as those, anyone considering speaking up can be forgiven for thinking twice.

Although there are non-profit and charitable organisations that can provide advice and guidance, existing legislation does not encourage or protect whistleblowers. I have been campaigning for a change in our whistleblowing legislation, as the Minister will know. Alongside my colleagues on the all-party parliamentary group on whistleblowing, I have now proposed a new Bill that would see the creation of an office of the whistleblower that would support and advise whistleblowers and organisations. It would set standards and levy penalties against those who retaliate against or penalise whistleblowers. That would include addressing the misuse of NDAs and gagging orders, which we simply must tackle. Further, it would recognise and support anyone who is blowing the whistle.

As my right hon. Friend the Member for Basingstoke pointed out, NDAs are being used as a tool to cover up wrongdoing, to silence victims and whistleblowers. We have allowed organisations to get away with using intimidation and fear to conceal evidence of wrongdoing, forcing whistleblowers and victims of crime to keep silent for too long. I call on the Minister to heed the calls heard here, and to take action on abusive NDAs and on our outdated whistleblowing legislation, to ensure that the Government are firmly on the side of truth and transparency and of people who do the right thing.