Women and Equalities Committee calls for end to “unethical” use of NDAs to silence victims of sexual abuse and harassment

The Women and Equalities Committee have this week published their report on sexual harassment in the workplace, denouncing the use of NDAs by employers and the legal profession to cover up sexual abuse and harassment.

Jennifer Robinson, together with Anya Proops QC, Aileen McColgan and Natalie Connor of 11KBW, made written submissions to the Women and Equalities Committee’s Inquiry into Sexual Harassment, specifically in relation to the misuse of non-disclosure agreements in cases of sexual assault and harassment and whistleblowing protections for women wishing to speak out.

The Committee summarised the problem as follows:

Non-disclosure agreements (NDAs) are used unethically by some employers and also some members of the legal profession to silence victims of sexual harassment, and there is insufficient oversight and regulation of their use. It is unacceptable that victims are scared to speak about their experiences of sexual harassment in the workplace and that those who use NDAs unethically are not held to account.

The Doughty Street-11KBW submission was quoted by the Committee as having summarised the main issues with the abuse of NDAs:

Barristers at 11KBW and Doughty Street Chambers have summarised the main risks from unethical use of NDAs in silencing victims as being that individuals will not report serious wrongdoing to the police; will feel compelled not to assist with relevant law enforcement investigations or prosecutions; and will feel unable to speak openly and in the public interest about serious wrongdoing, thus inhibiting public awareness and debate

The submission was published as part of the inquiry here.

Ms Robinson also advised Rose McGowan in preparing her evidence to assist the Committee (see here). Ms McGowan did not sign an NDA in her settlement agreement with Harvey Weinstein, but he and his company used NDAs to prevent women from speaking about the harassment and abuse they suffered. Zelda Perkins also gave evidence to the Committee.

The Committee called for reforms, including a number of the recommendations in their submission:

131.The Government should legislate to require the use of standard, approved confidentiality clauses. These should include clear, plain English wording setting out the meaning, effect and limits of confidentiality clauses, including a clear explanation of what disclosures are protected under whistleblowing laws and cannot be prohibited or restricted.

132.The definition of protected disclosures and prescribed persons under whistleblowing legislation should be widened to include disclosures of sexual harassment to the police and all regulators, including the Equality and Human Rights Commission and Health and Safety Executive, and to any court or tribunal.

133.The Government should make it an offence for an employer or their professional adviser to propose a confidentiality clause designed or intended to prevent or limit the making of a protected disclosure or disclosure of a criminal offence.

134.Use of provisions in confidentiality agreements that can reasonably be regarded as potentially unenforceable should be clearly understood to be a professional disciplinary offence for lawyers advising on such agreements.

Ms Robinson said:

For too long, women have been silenced from speaking out about abuse and harassment because of the use of NDAs. We are only now understand the extent of the problem and how it has allowed impunity for repeat perpetrators. This must end. It’s also important that victims understand their rights and have proper advice on any settlement agreements. The Committees report and its recommendations are welcome and an important first step towards the much/needed reforms.