What is an NDA?
An NDA is a non-disclosure agreement in a contract, which prevents the parties from talking about a dispute or allegation. In employment settlement agreements, employers usually ask victims of sexual harassment or discrimination to sign highly restrictive NDAs which prevent them from talking about what happened with anyone: including friends, family, therapists and medical professionals.
NDAs were originally designed to protect trade secrets and intellectual property, but they are increasingly used to silence whistleblowers and people who’ve been harmed in the workplace. Harvey Weinstein and other perpetrators of sexual violence have systematically used NDAs to prevent their victims from speaking out.
Why are these clauses harmful?
NDAs are harmful for two main reasons. First of all, they can be used to cover up a broad range of harms – from a single incident of harassment or discrimination to systemic sexual offences. They can effectively protect and enable dangerous perpetrators, and make the workplace less safe for everyone.
Secondly, NDAs prevent victims from talking about their lived experiences, even in private spaces, such as their family home or in a therapy session. If they suspect the perpetrator is now harming someone else, they are still prevented from speaking out.
Victims are often compelled to lie about why they really left an organisation (or risk being sued), and to continue doing so for the rest of their career. Being ‘gagged’ by an NDA can also have a devastating impact on workers’ mental health.
In a letter to the Legal Services Board, Dame Maria Miller MP wrote: “NDAs create a perpetual revictimization and, even if we cannot stop every instance of sexual harassment or bullying in the workplace, we can stop NDAs.”
Shouldn’t this be illegal?
It is illegal for an NDA to prevent anyone from reporting criminal activity to the police. The Higher Education Act (2023) also prevents universities from entering into NDAs with staff, students or guest speakers regarding complaints of sexual harassment or misconduct. However, apart from these restrictions, employers can use NDAs regardless of the harm they can cause.
Campaigning group Can’t Buy My Silence, founded by Harvey Weinstein whistleblower Zelda Perkins and law professor Julie MacFarlane, is calling for an end to the misuse of NDAs to cover up misconduct. MP Louise Haigh has tabled an amendment to the employment rights bill, which is due to become law later this year, arguing that all employers – not just universities – should be banned from misusing NDAs.
What can I do to change this?
The Can’t Buy My Silence campaign offers a range of ways for people to get involved. If you’ve been subjected to an NDA, you can share your story (anonymously). Anyone can write to their MP about this issue, discuss it with their trade union representative, or complete the speak out survey.
You can also sign the ‘end the misuse of NDAs’ petition and share it on social media.
As the employment rights bill progresses through parliament this summer, you can support Labour MP Louise Haigh and Liberal Democrat MP Layla Moran, who are calling for an amendment to prevent victims of harassment and discrimination from being silenced.
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