Tel: 0203 319 3643

Fax: 0208 894 5300

Emergency: 0750 625 5550

Advice to lawyers on NDAs no longer cutting it, says top Tory

By John Hyde >>

(7 September 2023)

A senior Conservative MP has said the current approach of advice and guidance concerning the use of non-disclosure agreements is no longer sufficient to prevent cover-ups of wrongdoing.

In a Westminster Hall debate this week, Dame Maria Miller (pictured) said the government should legislate to outlaw the improper use of non-disclosure agreements in the workplace.

She added that while lawyers were ‘part of the problem’, there has been an increase in NDAs drawn up by people not regulated by the legal profession or even using AI to insert confidentiality clauses into contracts.

The role of lawyers in drawing up NDAs was highlighted by a review from the SRA last month which found ‘significant imbalances in power’ between parties signings NDAs, exacerbated by one side being legally represented.

The SRA has issued guidance and advice to lawyers about not facilitating the cover-up of victimisation and harassment in the workplace, but Miller said this is not having the desired effect.

‘The evidence of the scale of the problem shows that the advice is simply not cutting through—it is not enough,’ she said.

‘Many employers… are simply perpetuating a cycle in which NDAs, confidentiality clauses, are seen as the norm, to silence victims of wrongdoing. Therefore it is time that we turned advice and encouragement into law.’

Miller has already proposed an amendment to the Victims and Prisoners Bill which would recognise people who have signed NDAs as victims. She also backed the expansion of a ban on NDAs in cases involving sexual harassment, discrimination and other forms of misconduct and bullying. This restriction became law in university settings under the Higher Education (Freedom of Speech) Act 2023.

‘If such a ban is good enough for universities, I hope that the minister will agree that we can see no reason why employees in other sectors should not be protected in the same way,’ added Miller.

In the same debate, shadow employment rights minister Justin Madders said the SRA’s research consitutes a good argument for government intervention.

‘The implications of the use of NDAs in the workplace have been known for some time, yet we have seen very little action taken,’ Madders said. ‘There was a flurry of interest and promises were made back in 2019, but more than four years later the only changes have been updated ACAS guidance and a warning notice sent out by the Solicitors Regulation Authority, both of which are non-binding and appear to have done little to mitigate the problems.’

Business minister Kevin Hollinrake pointed out there were already existing legal limits on the use of NDAs in the employment context. He said these agreements cannot prevent workers from reporting a crime or making a protected disclosure about wrongdoing.

The minister added: ‘We are clear that the use of NDAs to intimidate victims of harassment and discrimination into silence cannot be tolerated. We are already taking action in the higher education sector; we have published extensive guidance and consulted on the use of NDAs in the workplace; and we are carefully considering how to tackle wrongful practices in a wider context.’

(Courtesy: The Law Society Gazette)