MPs back government measures to limit use of non-disclosure agreements

Written by Richard Johnstone on 11 June 2019 in News
News

Committee heard from civil service chef people officer that NDAs are ‘not a particularly useful tool’

Rupert McNeil giving evidence to the committee in February. Photo: Parliament TV

A select committee of MPs has said it is encouraged by the government’s efforts to limit the use of non-disclosure agreements and has called on the rest of the public sector to follow suit.

In a report examining the use of confidentiality clauses across both the public and private sectors, the women and equalities committee set out a series of recommendations to better regulate their use.

Among the recommendations, MPs called on public sector organisations to “take the lead in ensuring that NDAs are not used to cover up discrimination and harassment” after chief people officer Rupert McNeil told the committee how the civil service had regulated their use.


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McNeil told MPs said that Cabinet Office guidance published in 2015 meant the standard for using NDAs was “very high” and specified a number of instances where they should not be used, including as a tool to cover up an organisational failure or to prevent employees from speaking out about malpractice.

In his evidence, McNeil revealed that more than 70 staff at a government arm’s-length body were asked to sign a confidentiality agreement over a pay dispute within the last four years.

The unnamed ALB is one of two government bodies – the other being a central department – that have signed non-disclosure agreements with civil servants in cases linked to allegations of discrimination in the last four years, the government’s chief people officer has said, although the Cabinet Office guidance meant “that wouldn’t happen now”, he said.

McNeil said NDAs were “not a particularly useful tool” for employers, although there were “some circumstances where it might be appropriate to have [an NDA] to protect both sides and as part of getting closure”.

Asked whether the civil service would ask a member of staff who had made allegations of sexual harassment to sign a gagging clause, he said: “That’s not something that we would expect.” He later added that doing so would be “completely unacceptable”.

“Speaking for the civil service as a large employer… if you want to create an inclusive culture and you want to create a safe workplace for people, I don’t think they’re a particularly helpful tool,” he said.

The committee said such measures to limit the use of NDAs were welcome.

“We are encouraged to see that some employers, particularly in the public sector, now routinely settle discrimination cases without using NDAs, demonstrating that confidentiality clauses are not intrinsic to settlement agreements,” the report concluded.

“Other public sector employers must now take the lead in ensuring that NDAs are not used to cover up discrimination and harassment, allowing such behaviour to go unchecked. Lawyers and employers must think more carefully about why they are requesting confidentiality and whether it is needed at all, and individuals should never feel forced into signing an NDA.”

Committee chair Maria Miller said that the use of non-disclosure agreements in settling sexual harassment allegations is “at best murky and at worst a convenient vehicle for covering up unlawful activity with legally sanctioned secrecy”.

She added: “It is particularly worrying that secrecy about allegations of unlawful discrimination is being traded for things that employers should be providing as a matter of course, such as references and remedial action to tackle discrimination.

“Some organisations now routinely settle employment disputes without the use of NDAs. We have put forward a range of measures to ensure more follow suit.”

Among its recommendations to better regulate the use of NDAs across the public and private sectors, the committee told government to ensure that NDAs cannot be used to cover up of allegations of unlawful discrimination and harassment in the workplace. As part of this, the MPs said government should consider whether employers should be required to investigate all discrimination and harassment complaints regardless of whether a settlement is reached.

There should also be a requirement for plain English confidentiality clauses where these are used in settlement agreements, while employers should be given a duty to appoint a named senior manager to oversee anti-discrimination and harassment policies and procedures, and another to oversee the use of NDAs in discrimination and harassment cases, they said.

Employment tribunals should be reformed to better incentivise cases being taken forward, rather than settled by a NDA, the committee said. This should include giving tribunals the ability to award punitive damages, while awards for the non-financial impact of discrimination should be significantly increased.

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Richard Johnstone is CSW's deputy and online editor and tweets as @CSW_DepEd

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