Unions exist first and foremost to protect employee rights, and there are many examples of where they’ve done that well. But it turns out unions don’t always make for the best, or even adequate, employers themselves.
In last week’s parliamentary debate on the use of non-disclosure agreements (NDAs) by employers to cover up abuse and discrimination in the workplace, Labour MP Louise Haigh recounted how unions have used confidentiality agreements to hush up appalling behaviour.
One example is the Transport Salaried Staffs’ Association (TSSA), which has used NDAs to try to prevent former female employees from publicly making allegations of sexual harassment against Manuel Cortes, the general secretary at the time; a 2023 review by Helena Kennedy KC later found that there had been “appalling incidents” and “leadership and management failings” at the TSSA in relation to sexual harassment and that Cortes’s behaviour around women was such an “open secret” that women joining the organisation were warned never to be alone with him. It is not just unions. Haigh has also used her parliamentary privilege to talk about the case of an ITN employee with functional neurological disorder who experiences seizures and blackouts. He experienced severe bullying and discrimination from his managers, including being forced to apologise to those who had witnessed a seizure, and being accused of lying about his disability. He took ITN to an employment tribunal; the company eventually settled but forced him to sign an NDA as part of the agreement.
Layla Moran, another MP pushing for change, has raised the case of a female ITN employee who was demoted after ending an abusive sexual relationship with an older male editor; after she complained, she was suspended without pay and told she could not talk to anyone but the police about it; in settling, ITN got her to sign an ultimately unenforceable NDA that gagged not just her but her partner, her friends and her parents, from talking about what had happened to her.
Haigh also last week raised the case of the former employee of a mental health charity who believes it has discriminated against at least four workers on mental health grounds, including herself; three ended up signing an NDA.
Because NDAs are so effective at gagging people from talking about abuse and discrimination – even when they would be unenforceable in court, they frighten workers into silence – we rarely hear about them apart from in the very high-profile cases where survivors, often women who have been sexually assaulted by powerful men, have been brave enough to break them via the press.
Zelda Perkins, a former PA to the jailed film producer Harvey Weinstein, founded the Can’t Buy My Silence campaign after she broke her own NDA to speak out about his criminal behaviour. She has long been campaigning for change because it is clear that NDAs are being used to undermine employment protections right across the labour market.
The cases raised by MPs using parliamentary privilege show just how systemic the problem is. Trade unions that exist to protect workers from abuse; media organisations whose job it is to hold power to account; charities that pride themselves on advocating for those with mental health issues: if these organisations are using NDAs to gag people from talking about things that are in the public interest, you can bet it’s going on in most workplaces.
The stories we are least likely to hear are of those working in low-paid, insecure jobs who are unlikely to have access to the legal advice needed to challenge them. And it is those most likely to experience discrimination – women, ethnic minority workers and disabled people – who will be most affected.
There are legitimate uses of NDAs: to protect confidential business information or to protect workers from details of discrimination cases being discussed – at their request – for example. The problem is that a legal tool originally intended to protect trade secrets and the like has expanded into a boilerplate legal clause that a huge number of employers routinely slap into settlement agreements.
This has huge implications not just for holding employers accountable for abuse and discrimination in the workplace, but for freedom of expression. Why should a nurse who accepts a settlement from an NHS trust have to sign an agreement that seeks to prevent them from criticising that trust in perpetuity, for example?
Various spurious arguments are advanced against clamping down on the use of NDAs: chiefly, the idea that if you take away the power of employers to bully former employees into signing NDAs, there will be fewer settlements. But settlements will still be reached as a means of avoiding expensive court cases. In the US – hardly a bastion of employment rights – 27 states have introduced tougher restrictions on the use of NDAs, and an analysis of data from six suggests settlement rates actually went up after they were enacted.
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Here in the UK, universities have just been banned from using NDAs in the case of sexual harassment, discrimination and bullying between students and staff in the Higher Education (Freedom of Speech) Act. That’s an important development, but there is absolutely no reason why employees and students of universities should be entitled to these protections, while those who work for outsourced cleaning companies contracted by universities should not be.
Haigh and Moran are leading efforts to get the government to amend its employment rights bill to more tightly regulate the use of NDAs across the economy; they not only have the support of the Conservative and Liberal Democrat frontbenches, but from business and union leaders and experienced lawyers in the House of Lords.
It would be remiss of the government to introduce further important employment rights – such as banning exploitative zero-hours contracts and fire-and-rehire policies – without also addressing a key reason it’s so difficult for workers to enforce their existing protections. It should not only restrict the use of NDAs in harassment, bullying and discrimination cases, but where there is a public interest in ex-employees speaking out about matters that involve their former employer.
This is so often how it works: when employment rights become codified in law, the powerful find workarounds, like NDAs, to evade their legal responsibilities, even as they claim to support them. Ministers must finally close this longstanding and much-abused loophole.
Sonia Sodha is an Observer columnist
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