· Comment

NDAs have an important role, despite a campaign to ban them

Calls for a ban on non-disclosure agreements are growing in the UK

Campaign groups Pregnant Then Screwed and Can’t Buy My Silence are calling for non-disclosure agreements (NDAs) to be banned in employment disputes. Some of the personal testimonies they share are concerning and should give employers cause to reflect, however, I don’t support calls for a ban.

I act for many women who experience sexual harassment in the workplace, or who are treated badly due to pregnancy or maternity. In my view, there is an important place for NDAs.

The statistics around women at work do not make happy reading. The Fawcett Society reports that 40% of women experience workplace sexual harassment, with that number even greater for disabled, black and minority groups. In reality, the scale of the issue is even greater, as that 40% proportion does not take into account the number of unreported incidents.

Read more: Misuse of NDAs: Call for evidence launched by regulator

Research published by Pregnant Then Screwed shows that more than 400,000 mothers have signed an NDA or confidentiality clause in the UK following discrimination, bullying or harassment at work. Concerningly, the campaign group also reports some women suffering significant mental health distress, and being left feeling suicidal after signing NDAs.

However, it is wrong to assume that an NDA or confidentiality agreement is always imposed on the employee. Not all former employees exiting under a settlement agreement will want their business to be made public. In those cases they actively seek the security that an NDA or confidentiality agreement will give them.

In my experience as an employment lawyer, it is often the case that once an employee feels they have been compensated financially for what they have been through, they just want to find a new employer that will treat them better and move on quietly. An NDA or confidentiality agreement can provide a full stop, or a line in the sand that helps to put a bad experience behind them.

There are misconceptions about NDAs and it is often wrongly reported that signing one completely shuts the employee down. However, settlement agreements always expressly allow for the former employee to whistleblow and report matters to the police.

Over my career I have supported many women who have experienced discrimination after becoming pregnant or having a baby. There is no doubt that having children can unfairly result in negative changes at work in terms of how employers view and treat employees, which can result in threatened claims and settlements.

Read more: HR must find its backbone and stop using NDAs

But it is also important to remember that having children can also change how an employee views their role and what they want and need from their employer going forward. As a result, there will sometimes be a disconnect which cannot be resolved. In such cases, a settlement agreement may well be the best option.

It is of note that the government has this week refused to ban NDAs in harassment cases. The treasury committee has published a response to its report on sexual harassment and bullying in the financial services sector, and a proposal to ban NDAs was rejected.

This is a fast-moving area. The #MeToo movement brought sexual harassment at work into focus several years ago; legislation is following. This October will see a positive obligation on employers to prevent sexual harassment coming into force. This means that if employers face an allegation of sexual harassment, they will need to demonstrate the steps they have put in place to protect employees.

The best employers will do everything they can to create a culture where sexual harassment is not tolerated. But if incidents do occur, in my view, NDAs will continue to have a role to play.

David Greenhalgh is an employment lawyer and partner at Excello Law