11:17, February 10 289 0 theguardian.com

2020-02-10 11:17:09
'Gagging orders' should not be used to stop whistleblowers - Acas

Non-disclosure agreements (NDAs) should not be used to stop workers from reporting sexual harassment or whistleblowing, the conciliation service Acas has said.

In new guidance on the contracts, the body also underlined that contracts should not be used to prevent the reporting of discrimination or harassment to the police.

NDAs or “gagging orders” are widely used across industries, including film, advertising, finance, universities and the health service, typically to prevent staff from making information public.

The legally drafted contracts can apply to sensitive commercial information or trade secrets, but can also be used to prevent the spreading of anything likely to damage an organisation’s reputation.

Last year, a report by MPs warned that claims of unlawful discrimination and sexual harassment at work were routinely being covered up by employers through the use of the contracts.

Susan Clews, the chief executive of Acas, said: “NDAs can be used legitimately in some situations but they should not be used routinely or to prevent someone from reporting sexual harassment, discrimination or whistleblowing at work.

“Our new advice can help employers and their staff understand what NDAs are, how to prevent their misuse and examples where they will not be needed.”

The advice, set out on Monday, also urged employers to ensure workers were given a reasonable amount of time to consult trade union or legal advice on the implications of NDAs, and think about “whether it’s better to address an issue head on” rather than to cover it up.

Acas also flagged that the contracts – which usually involve a payment to the employee – should not be used routinely, and that managers who helped to draw up such agreements should be well trained in their use.

NDAs gained particular notoriety after the #MeToo scandal broke and Harvey Weinstein’s prolific use of them to keep a lid on allegations of sexual harassment and assault was exposed.

In the Weinstein Company’s bankruptcy filing in 2018, it stated that it released anyone “who suffered or witnessed any form of sexual misconduct” by the Hollywood film producer from their NDAs.

Weinstein, who is on trial in New York accused of rape, has denied any non-consensual sex.

The frequent practice of using NDAs in UK universities to prevent staff from going public with claims of bullying or sexual misconduct has also caused outrage.

Figures obtained by the BBC last year showed that UK establishments had spent about £87m on pay-offs with NDAs since 2017.