NDAs under the spotlight. Again.

October 8th, 2021

Confidentiality or non-disclosure agreements (NDAs) are often used by employers in order to safeguard against the sharing of confidential information by employees to third parties. However, there is a growing body of opinion that some employers have been using these largely unregulated agreements in bad faith, including to gag employees from exposing instances of sexual assault and criminal behaviour within companies. This issue has not been far from the headlines in the wake of the #metoo movement.

A Bill that would restrict the use of NDAs to conceal an employer’s wrongdoing has in recent weeks completed the first stage of its passage through Parliament. Maria Miller, the former chair of the select committee on women and equalities, led a group of cross-party MPs in presenting the Bill for its first reading in the Commons. In her speech, Miller stated that NDAs are increasingly being used by “scurrilous employers to conceal unlawful wrongdoing” and that the use of such agreements is “driving the wrong culture in the British workplace”, whilst highlighting measures already being taken in jurisdictions such as California, Canada, and Ireland to curb the use of NDAs.

This scepticism towards employer motivations regarding NDA use does not come in a vacuum. Earlier this year, The Department of Education committed itself to reviewing the use of NDAs in a bid to address sexual harassment in higher education after the issue was raised in the Home Office policy paper Tackling violence against women and girls strategy. During her Commons speech, Miller also drew attention to the website “Can’t Buy My Silence”. Co-founded by Zelda Perkins (the first person to break an NDA with Harvey Weinstein), the campaign aims to incite legislative change to make NDAs unenforceable for any reason other than the protection of a company’s intellectual property and trade secrets. The website also hosts anonymized testimonies of those who feel they have been exploited by an employer through the use of an NDA.

The second reading of the Non-Disclosure Agreements (No. 2) Bill is scheduled for 18 March 2022, which will be the first opportunity for MPs to debate on the principles of the Bill.

This one is sure to rumble on for some time and we will keep you posted.

This blog was brought to you by Michael Green, Paralegal at didlaw.

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