Recommendation 6

HM Government Accepted

The Government acknowledges that non-disclosure agreements (“NDAs”) have their legitimate purposes, for example to protect intellectual property or financial information. However, they should never be used to take unfair advantage of workers, who may be in vulnerable or insecure positions, to cover up workplace misconduct. Unfortunately, evidence from a range of high-profile cases in the UK and overseas, as well as several parliamentary inquiries, including both Misogyny in Music reports by the Committee, has shown that some employers have been doing just this. Some employers can exploit the inherent imbalance of power to get NDAs signed, fostering a culture of silence and impunity. NDAs can also have negative impacts on workers, especially when they are prevented from discussing their experiences with others. This is why in July of this year, the Government tabled an amendment to the Employment Rights Bill to insert a new clause which will address the misuse of NDAs which was passed at Lords Reports Stage. Clause 24 will void any provision in any agreement, such as a contract of employment or settlement agreement, between a worker and their employer that prevents a worker from speaking out about relevant harassment or discrimination. Relevant harassment or discrimination is defined in line with the definitions in the Equality Act 2010 and is: • Conduct which the worker or a co-worker has suffered or is alleged to have suffered; or • Conduct carried out or alleged to be carried out by the employer or a co-worker – for example where a colleague tells another colleague that their boss has sexually harassed them. Clause 24 will also render void any provision in an agreement which prevents a worker from speaking out about their employer’s response to the relevant harassment or discrimination or an allegation relating to it. The Government will consult on the secondary legislation that will set out the criteria required for an NDA to be valid in the case of relevant harassment and discrimination (‘excepted NDA’). The intention is that the regulations will be aimed at shifting the balance of power away from employers who use NDAs to cover up misconduct by ensuring that workers have a greater say in whether they want an NDA and, if they do, a better understanding of what they are agreeing to. We will also consult on the regulations that will specify who workers with excepted NDAs can speak to about their experiences, such as their medical practitioner, and on regulations to extend this new legislation to other individuals, such as to certain self- employed persons. This reflects the evidence from the Committee and others that NDA misuse can extend beyond the traditional employer/worker relationship, especially in the creative industries, for example.