What the UK's NDA ban means for victims of workplace harassment
In a major shift for workers' rights, the UK government has announced that employers will soon be banned from using non-disclosure agreements (NDAs) to silence victims of workplace discrimination or sexual harassment. Under a new amendment to the Employment Rights Bill, which is expected to become law later this year, any clause that prevents workers from speaking out about abuse will be rendered legally void.
According to ministers, victims will no longer have to “suffer in silence” as a result of the gagging orders. This means individuals will be able to speak freely about their experiences, while witnesses will be able to support them without the threat of being sued.
“We have heard the calls from victims of harassment and discrimination to end the misuse of NDAs,” deputy prime minister Angela Rayner said. “It is time we stamped this practice out — and this government is taking action to make that happen.”
Hannah Strawbridge, employment lawyer and CEO of Han Law , says she has seen NDAs used appropriately to protect legitimate business interests, like client confidentiality or sensitive commercial information. “But we’ve also advised on far too many cases where NDAs were presented after allegations of sexual harassment, bullying, racism, and other forms of serious workplace misconduct," she said.
"In those situations, the aim was often to protect the employer’s reputation — not the individual’s wellbeing.
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“This proposed ban is a turning point. It sends a clear message that gagging clauses can no longer be used to sweep discriminatory behaviour under the rug. Employers will need to deal with problems properly — not just pay to make them go away.”
What are NDAs?
NDAs have become one of the most common legal documents that workers sign. In the United States, researchers estimate a third of workers have signed these agreements — but it’s not known exactly how many UK workers are bound by NDAs.
Officially, these legal agreements or clauses, believed to have originated in the context of maritime law , are designed to prevent former workers from disclosing confidential information or sharing industry secrets.
Now, however, NDAs are often used to stop people from speaking about harassment or discrimination — to effectively protect an employer’s reputation and allow them to continue acting unfairly with impunity.
According to a study by the Chartered Institute of Personnel and Development (CIPD) , 22% of surveyed employers use NDAs when dealing with allegations of sexual harassment.
Research by the charity Pregnant Then Screwed has also found that more than 435,000 mothers in the UK are estimated to have been gagged by NDAs following discrimination, bullying and harassment at work.
Covering up sexual harassment and abuse
By signing NDAs, victims have been prevented from disclosing abusive behaviour to friends, family, the media and others. This has allowed repeat offenders to go undetected — and hide patterns of abusive behaviour.
The use of NDAs to cover up criminality have been widely publicised. High-profile cases like that of US film producer Harvey Weinstein are an example of how powerful individuals have been able to use settlements, including NDAs, to cover up allegations of sexual misconduct. In late 2018, it was reported that Sir Phillip Green's company Arcadia used NDA clauses with some staff .
More recently, the now deceased Mohamed Al Fayed, who formerly owned Harrods, was accused of deploying confidentiality clauses to silence women who accused him of rape and abuse.
What does the UK NDA ban mean for victims of misconduct?
The UK’s ban on the misuse of NDAs in cases of sexual harassment and misconduct empowers victims by making it illegal to use NDAs to silence them. If the law is passed, victims will be able to speak to police, regulators, therapists and relatives without fear of legal repercussions, to promote transparency and safer workplaces.
In contrast, the US has a patchwork approach. While some states like California and New York have restricted NDAs in harassment cases, there’s no comprehensive federal ban, meaning many victims across the country may still face silence clauses in settlement agreements.
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“The banning of NDAs is important as this will prevent organisations from covering up discrimination and harassment and effectively silencing those who have been victims of such behaviours and conduct,” says Danielle Ayres, an employment lawyer and partner in the employment team at the legal firm Primas Law .
However, Ayres adds that in practice, NDAs for a variety of legitimate reasons. “Some are to settle matters such as where individuals are taking voluntary redundancy and are getting an increased settlement payment and it makes sense for both parties to draw a line in the sand as neatly, quietly and swiftly as possible,” she says.
“But others are in an attempt to sweep misconduct within workplaces under the rug. This means employees have to withdraw grievances, grievance appeals or actual Tribunal claims and aren't able to tell anyone about the circumstances surrounding the matter or what has led to the settlement.”
In some cases, Ayres explains, the financial settlement being offered alongside the NDA means that it is just not worth the individual pursuing the matter further. “Instead, they are pushed into a corner to accept what is being proposed — as the amount completely outweighs the time, energy, stress and expense involved in pushing the matter through to conclusion,” she says.
With sexual harassment a growing problem in workplaces, the ban is a step in the right direction. A recent survey of 6,615 women by the union Unite found a quarter had been sexually assaulted or coerced while at work. Still, some challenges remain. To address the problem of workplace harassment, experts say a culture change is needed beyond legal reforms. And, some victims may still choose NDAs for privacy or compensation.
“I do think that it may prevent employers wanting to settle these claims, which actually might negatively impact individuals as there are lots of people who would rather take a settlement and move on, rather than have their day in court,” says Ayres. “Time will tell if this change will have this particular impact.”
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