PROTECT YOUR COMPANY BY SIGNING THE BUSINESS PLEDGE
TO END THE MISUSE OF NON DISCLOSURE AGREEMENTS
WHAT IS THE PROBLEM?
Non disclosure agreements (NDAs) have a legitimate place in business to protect trade secrets and commercially sensitive information (not relating to allegations of misconduct). However, NDAs are now regularly misused to conceal complaints of misconduct and have become a core part of the system that allows harassment, abuse, discrimination and bullying to go unchecked. NDAs that are misused in this way silence victims and protect sexual predators, bullies, racists and abusers in the workplace, enabling the behaviour to continue and toxic work environments to fl ourish.
This situation has created a pressure cooker which is now erupting, as is repeatedly being reported in the press, with public reputational fallout for a growing number of individuals and organisations where misconduct issues have not been dealt with correctly and instead hidden behind NDAs. “NDA” has become a toxic term in the public discourse and one which businesses increasingly do not want to be associated with.
In 2022 Can’t Buy My Silence created a voluntary pledge for universities to stop misusing NDAs. This was partnered and endorsed by then Education Minister Michelle Donelan and the Department for Education. 67% of key institutions signed up and within 18 months this changed the landscape and passed into legislative reform. The new legislation will prohibit all providers of Higher Education 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 legislation the UK 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.”
The next step needs to be broadening these protections to the rest of the economic workforce which is why Can’t Buy My Silence are calling on leading UK businesses to be at the forefront of this change by signing our pledge now.
You will not be alone, Governments and organisations around the world are rapidly taking steps to abolish the misuse of NDAs. In November 2022 President Biden signed into law the Speak Out Act which now prohibits the use of pre dispute NDAs and non disparagement agreements in cases of sexual misconduct. Big tech companies including Google, Apple, Microsoft and Salesforce have expanded the protections of California and Washington states' Silenced No More Act, to all their US employees. This Act prohibits the use of NDAs in cases of discrimination and sexual misconduct.
By committing to the Pledge, you will bring your business in line with the legal reform that is already underway across the world. It will make you a leader in the UK, signalling to your shareholders and employees that you take workplace ethics seriously.
We commit to not using non-disclosure agreements or clauses (NDAs) to stop anyone in our organisation from raising complaints or discussing incidents of sexual harassment, abuse or misconduct, discrimination, retaliation, bullying or other harassment, either at the point of hiring, termination or any other stage.
This pledge does not aff ect the reasonable use of NDAs to protect unrelated commercially sensitive information,
financial details, client confi dentiality and intellectual property.
WHY IS THE PLEDGE NEEDED?
Legal regulators have issued several warning notices, and The Department for Business, Energy & Industrial Strategy conducted a public consultation in 2019 with recommendations for change. Despite this, change is not moving fast enough and the misuse of NDAs continues.
Ending the misuse of NDAs is good for businesses, shareholders and employees:
- Shareholders are often not aware funds are being used for settlements including NDAs.
- NDAs prevent Boards from having a full understanding of what is going on in their business and rooting out poor culture.
- Using NDAs to protect a person who has behaved abusively and possibly criminally allows them to stay put or move with impunity to another department or organisation.
- Research shows that NDAs chill the climate for anyone wishing to speak up about abuse in the workplace - meaning the behaviour can continue and escalate unchecked.
- Businesses that misuse NDAs as a standard form of settling disputes foster an environment of secrecy and distrust which impacts the entire organisation.
We recognise that settlement agreements are important and necessary mechanisms for some workplace disputes, giving both parties the opportunity to avoid expensive litigation. The fi nancial element in a settlement agreement should be compensation for damages or loss of employment not a trade for absolute silence. Confi dentiality about the settlement amount or the victims identity are reasonable but these agreements should not be reliant on broader silencing clauses. Libel and defamation laws are in place to protect innocent parties from what may be vexatious claims and non disclosure clauses have their own proper place but abuse and misconduct at work should not be treated as a "trade secret".
If you’re interested in understanding more about the pledge or hearing more about the campaign and how your business can be a part of it please contact: