Thursday, 07 March 2019 09:02

Protecting whistleblowers not Criminality – How the UK Government’s new banning of gagging orders aims to enhance protection for whistleblowers

The UK government’s recent announcement introducing measures to prevent employers from using non-disclosure agreements (NDA) to prevent employees reporting harassment, discrimination or abuse is seen as a huge development in protection for whistlebleblowers in the UK.

Many businesses use NDA’s for legitimate business purposes, intended to prevent employees sharing trade secrets when they move to another company. However, there has been increasing evidence that NDA’s are being used by a small number of employers to intimidate whistleblowers and keep them silent about wrongdoing in the workplace.

The government’s announcement follows a string of high-profile headlines in the media of gagging clauses being used to silence employees who have alleged that they were the victim of harassment or abuse.

NDA’s came to prominence last year when Zelda Perkins, a former assistant of the shamed former film producer Harvey Weinstein, had advised that she was pressured into signing an NDA to prevent her from speaking out about a colleague who had accused Weinstein of sexual assault. In the aftermath of the scandal Ms Perkins had advised that “There cannot be a legal document that protects criminal behaviour” when she made an address to the Women and Equalities Committee.

More recently retail tycoon Sir Philip Green was accused of using an NDA to prevent employees speaking out about his alleged sexual harassment and bullying of staff. In another example last year, young women employed as waitresses at an all-male Presidents Club dinner at London’s Dorchester Hotel were obliged to sign NDAs that were intended to prevent them from speaking up regarding sexual harassment by paying guests.

The BBC, and several UK government departments are among other organisations that have been criticised for using NDAs. The House of Commons spent more than £2.4million through 53 NDAs with employees between 2013 and 2017 raising questions as to why large amounts of money was needed to deal with severance agreements.

The widespread abuse of NDAs and global campaigns such as #me-too have had a profound effect on how perpetrators of mistreatment and abuse are being perceived by the public with growing pressure on Governments to take decisive action in protecting and encouraging whistleblowers to speak up.  

As part of the forthcoming changes, workers will now have to be given independent advice on the implications of any NDA they sign, and have their rights presented to them clearly in writing before signing up to them. Legislation will also ensure that confidentiality agreements cannot stop employees speaking to the police, doctors or therapists.

Theresa May has advised that she hopes that the new measures will put an end to ‘unethical’ use of farewell clauses to conceal allegations of sexual harassment, bullying, physical threats, racism or discrimination.

Whistleblowers deserve our praise and gratitude for having the courage to speak up and be heard. It is only right that they should be afforded every protection when wishing to raise concerns to combat wrongdoing. The new measures are welcome and should be embraced by all businesses.

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