Financial Times, June 25, 2023. By Zelda Perkins
Each week it seems another scandal is reported. In business, in the media, in Westminster, in the police, fire and health services. The news is full of toxic work environments, bullying, sexual misconduct, discrimination — and ultimately cover up, with all the reputational damage that brings. And, again and again, there is one thing at the heart of this cover-up culture: an NDA....[T]hey have become a cornerstone of a legal and corporate culture that treats abuse as a “trade secret”. The #MeToo movement successfully highlighted just how widespread inappropriate behaviour in the workplace is. But ever since I broke my own NDA with film producer Harvey Weinstein, I have believed that the spotlight needs to shift from the personal to the systemic. It is after all the system that has long protected the golden geese.
"But now the wall of silence created by NDAs is beginning to crumble. People are speaking to the press out of desperation as businesses fail to deal with the problems. NDAs are now as likely to signpost issues as they are to protect reputations. Despite several warnings from legal regulators, no guidance has actually changed since 1998, the year when my own, ultimately unlawful, contract was made. Firms and HR departments continue to recommend NDAs but, as the public grows wise to the acronym, they no longer call them that. Instead there are the less inflammatory “standard confidentiality agreements”, non-disparagement clauses or even just a settlement agreement, which happens to have confidentiality buried in it. Let’s be clear though: anything that means a victim cannot speak about the abuse they experience is an NDA."
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"What started as a voluntary Can’t Buy My Silence pledge (pioneered by the campaign group I founded with the law professor Julie Macfarlane) is now new legislation. This will prohibit all higher education providers from entering into NDAs with staff members, students or visiting speakers in relation to complaints of sexual misconduct, abuse, bullying, harassment or discrimination. In proposing this, the government acknowledged: “It can never be right to force a victim of sexual misconduct, bullying or harassment to remain silent, denying them the right to talk about what has happened to them.” This is the first law of its kind in England. The Legal Services Board announced a public consultation into NDAs in May. They have stated that their aim is to make it an offence for lawyers to make NDAs that cover up any form of misconduct. If this happens, businesses and organisations around the country are going to have to radically change how they deal with allegations. This is a good start but we now need to broaden these protections to the rest of the economic workforce. If British businesses sign up to our voluntary pledge to stop using NDAs, they are showing that they take workplace ethics seriously and that they will be the forerunners in what is an inevitable cultural and legislative change."
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