Anya Proops QC, Aileen McColgan and Natalie Connor together with Jennifer Robinson of Doughty Street Chambers have today provided written submissions to the Women and Equalities Committee’s Inquiry on the misuse of non-disclosure agreements.
The Committee was established in June 2015 to hold the Government and its Equalities Office to account. Its Inquiry into Sexual Harassment was launched at the beginning of this year and the Committee is currently hearing evidence from various individuals who have experienced or witnessed sexual harassment, and those who have signed NDAs in that connection.
The submissions produced by members of Chambers consider not only NDAs which have the effect of concealing sexual harassment of women but, more broadly, agreements signed by men and women alike which are designed to conceal any kind of serious wrongdoing (including possible criminal conduct) committed against, or witnessed by them. The submissions examine the existing legal and regulatory landscape in this area, including the protections against enforcement of such agreements and the possible criminal and regulatory sanctions which might apply to those who facilitate their creation, including lawyers. The submissions highlight that there is, by contrast, a real risk of ‘wrongdoers’, i.e. the people in respect of whose conduct the NDA is drafted, acting with almost complete impunity in effectively abusing their dominant position so as to induce an individual (who may be a victim of criminality) to enter into an oppressive and excessive NDA which prevents serious or criminal wrongdoing from coming to light.
The submissions recognise that a balance needs to be struck between protecting vulnerable people who may be pressured into signing such NDAs and not unduly inhibiting freedom of contract and the wider availability of legitimate confidentiality clauses, but suggest that further measures are necessary to adequately achieve the former, including by ensuring that wrongdoers are sufficiently deterred from misusing NDAs, and by educating the public more widely about their rights.