Government enquiry into non disclosure agreements now open

The House of Commons Women and Equalities Committee has launched an enquiry seeking views on the use of non disclosure agreements (NDAs) where harassment or discrimination is suspected.

Individuals and businesses have been fiercely criticised for using NDAs to prevent victims of discrimination or harassment from speaking out about their experiences. There have been some appalling examples. 

But these examples are only part of the picture. 

Most settlement agreements contain a clause in which both parties agree to keep confidential the terms of the agreement and the reasons why it has been entered into. People enter into settlement agreements for lots of reasons not least because, if agreed early enough, the parties do not have to give evidence or face cross examination.  Also, individuals often prefer to reaching a sensible financial settlement rather than risk getting nothing if they lose their case at tribunal.

The Women and Equalities Committee inquiry made a number of recommendations to tackle sexual harassment in the workplace which it found to be "commonplace". One of these was to "clean up" the use of NDAs.

This enquiry asks businesses, advisors and individuals to answer the following questions:

• Are there particular types of harassment or discrimination for which NDAs are more likely to be used?
• Should the use of NDAs be banned or restricted in harassment and discrimination cases? What impact would this have on the way cases are handled?
• What safeguards are needed to prevent misuse?
• What is the role of internal grievance procedures? What obligations are there on employers to ensure these are fair and thorough?
• How easy is it for employees and employers to access good quality legal advice on NDAs? How can quality and independence of legal advice for employees negotiating severance agreements be assured when advice is paid for by the employer?
• Do some employers use NDAs repeatedly to deal with cases involving a single harasser? If so, is appropriate action being taken to deal with the behaviour?
• What should the role of boards and directors be? And should employers be obliged to disclose numbers and types of NDAs?

I've highlighted those likely to be of particular interest to businesses. 

The deadline for written submissions is 28 November 2018.

Women and Equalities Committee Chair Maria Miller said:

“Use of NDAs in sexual harassment cases is only part of the picture. This new inquiry will focus on their wider use in other cases involving other forms of harassment or discrimination.””