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Mail & Guardian
2 days ago
- Business
- Mail & Guardian
Non-disclosure agreements can't silence workplace harassment
Graphic: John McCann The use of non-disclosure agreements (NDAs) for harassment has sparked debate about whether such agreements protect organisations at the expense of complainants' rights. Zelda Perkins, former personal assistant to American former film producer and convicted sex offender Harvey Weinstein, highlighted the plight of silenced employees by establishing the Can't Buy My Silence campaign in the UK to challenge the abuse of NDAs. In response, the UK government announced measures prohibiting employers from using NDAs to silence aggrieved employees. The proposed reforms will prevent employers from including confidentiality clauses in settlement agreements where misconduct is alleged, thereby ensuring individuals are not legally bound to remain silent about their experiences. Several jurisdictions have taken steps to restrict the misuse of NDAs in cases of workplace harassment and discrimination. In the US, various states have implemented anti-harassment laws regulating non-disclosure agreements, complemented by the national Speak Out Act, which bans pre-dispute NDAs. Similarly, Prince Edward Island in Canada enacted the Non-Disclosure Agreements Act in 2022, which prohibits NDAs designed to conceal allegations of harassment or discrimination, promoting transparency and protecting employees' rights to speak openly about abuse. These examples highlight a global trend towards greater accountability and the prioritisation of victims' rights over institutional secrecy. South Africa also regularly deals with cases involving harassment, discrimination and sexual misconduct. The country has not yet enacted legislative reforms to tackle the specific misuse of NDAs but various legal principles and developments do provide protections in this space. NDAs are generally enforceable under South African contract law, provided they are reasonable in scope and duration, and do not violate public policy. The Labour Relations Act (LRA), the Employment Equity Act (EEA) and the Protected Disclosures Act (PDA) offer protection to employees who report harassment or discrimination. Although the EEA does not expressly prohibit NDAs, any agreement that silences victims of harassment or discrimination arguably undermines the purpose of the Act. Section 6 prohibits unfair discrimination and harassment. Victims may not be prevented from reporting such conduct to the Commission for Conciliation, Mediation and Arbitration (CCMA), Labour Court or Equity Court. If an NDA prevents such reporting, it could be found to be contrary to public policy and therefore unenforceable. The EEA also imposes a duty on employers to take steps to eliminate harassment. If an NDA is used to cover up harassment, rather than resolve it, the employer could remain liable, regardless of the existence of the agreement. The Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace (Harassment Code), issued under the EEA, aims to eradicate all forms of workplace harassment. It provides a formal mechanism for reporting discrimination and harassment. The code also holds employers vicariously liable for employees' conduct unless they can demonstrate that reasonable steps were taken to prevent and address such behaviour. These provisions arguably prohibit the use of NDAs to silence complainants or avoid accountability. Section 2(3) of the PDA provides that any clause in a contract of employment or other agreement that seeks to exclude or waive rights under the Act is void. This includes agreements preventing the institution or continuation of proceedings under the PDA. This statutory override invalidates any NDA (or other contractual term) that seeks to silence whistleblowers. Notably, the PDA defines 'disclosure' broadly as any disclosure of information about the conduct of an employer or employee, made by a person who reasonably believes that the information shows, among other things, unfair discrimination as contemplated in the EEA or the Promotion of Equality and Prevention of Unfair Discrimination Act. Under section 8 of the Occupational Health and Safety Act, employers are obligated to provide a working environment that is safe and without risk to employees' health. If employers rely on NDAs to conceal harassment, rather than address the underlying issues, they may fail to meet this obligation. As a result, contracts attempting to circumvent these responsibilities may be rendered unenforceable. While victim-initiated settlements may be permissible, they do not negate an employer's broader duty to comply with statutory obligations and actively promote a harassment-free workplace. The LRA protects employees against victimisation and unfair labour practices. In harassment cases, NDAs can be used to prevent or restrict victims from disclosing their experiences. This undermines the right to a safe and fair workplace and may foster impunity. The LRA ensures employees can challenge such practices, thereby safeguarding their rights and supporting a culture of accountability. Sections 187(1)(d) and (h) of the LRA classify dismissals as automatically unfair if they are linked to the enforcement of workplace rights or if silence leads to constructive dismissal. In the context of NDAs, such agreements can pressure employees into remaining silent about harassment or other misconduct. If the terms of an NDA create an intolerable working environment that results in resignation, it can constitute constructive dismissal. While South Africa's legal framework theoretically protects harassment victims from NDA misuse, practical enforcement remains a problem. The existing legislation provides comprehensive protections that can render specific anti-NDA reforms unnecessary. But employers and legal practitioners must understand that NDAs cannot lawfully silence harassment complaints and victims should be aware of their rights under various laws. The focus should be on strengthening enforcement mechanisms rather than creating new laws. Employers must carefully review settlement agreements to ensure compliance with statutory obligations under the relevant legislation. Any clauses that prevent employees from reporting harassment or discrimination to regulatory bodies such as the CCMA, Labour Court or Equity Court, should be avoided, because these are likely to be deemed unenforceable and contrary to public policy. Instead, employers should focus on protecting legitimate business interests, such as confidential commercial information, trade secrets or preventing disparagement, while ensuring that such provisions do not silence the core harassment complaint or restrict employees' legal recourse. Crucially, employers must maintain robust harassment prevention and response procedures, because NDAs cannot absolve them of their statutory duty to provide a safe working environment or eliminate workplace harassment. Dhevarsha Ramjettan is a partner and Kanyiso Kezile a trainee attorney at Webber Wentzel.
Telegraph
08-07-2025
- Politics
- Telegraph
Banning NDAs isn't necessarily a slam dunk
Sometimes we see a case which is obviously unjust and naturally want to make it right. It is an admirable instinct in the individual, but for governments it is vital to take any case in context and consider the consequences before applying the sledgehammer of statute. The Employment Rights Bill which the deputy prime minister, Angela Rayner, is currently shepherding through Parliament will have its Report Stage in the House of Lords next week. It is a huge collection of measures – currently 157 clauses and 12 schedules – which is broad in scope, from sick pay to seafarers' wages. Ministers, though, have now proposed a new clause to ban the use of non-disclosure agreements (NDAs) or confidentiality clauses in cases of harassment and discrimination, and to void any existing agreements. On the face of it, this will take away a weapon used by abusive employers to intimidate and silence their victims. It has been championed by Zelda Perkins, founder of campaign group Can't Buy My Silence UK, who was an assistant to Hollywood producer and serial sex offender Harvey Weinstein. Her decision in 2017 to break an NDA and speak out about the abuse she had suffered from Weinstein helped expose his sustained record of rape and abuse. Clearly Weinstein had misused a condition of non-disclosure to prevent Perkins from revealing her ordeal. Equally, there is no doubt that NDAs and confidentiality clauses have been used in many cases, especially in the entertainment industry, to keep victims of abuse silent. The benign intent behind this change is beyond doubt. But legislation does not target individual cases or groups of cases: it puts into statute general principles which must apply to everyone equally. The problem of generalising from the specific, as the new clause effectively does, is that it assumes that the circumstances will always be the same. In this case, it proceeds from the assumption that an NDA or confidentiality clause is always an attempt to prevent a genuine victim of harassment or discrimination from speaking publicly about it. Even if we assume that the overwhelming majority of claims of this kind are genuine and clear-cut, it would be astonishing if every single one was absolutely true as alleged. We know human nature better than that. There may be cases in which either a malicious accusation is brought, or in which the circumstances are complex and ambivalent. In such cases employers may agree to a financial settlement simply to bring the case to an end. Some campaign groups, like Maternity Action and the National Alliance of Women's Organisations, have argued that financial settlements which include an NDA are sometimes a practical and achievable way for those who have suffered to extract some kind of monetary benefit and move on. Employers will hardly be likely to offer any kind of settlement to bring a dispute to an end if the option of genuine closure is taken away, and if there is a danger of it continuing to be litigated in the court of public opinion. Katie Waissel, a former reality television star who now campaigns against the use of NDAs, summed up the problem, but her words hint at the other issues. 'I understand non-disclosure agreements in terms of protecting trade, like a formula for haircare or something else like that. But for the music industry, and it being so one-sided for this company, it begs me to ask the question – why so secretive? What are you trying to hide? What are you trying to cover up?' The questions are valid, but there may sometimes be equally valid answers other than abusive employers imposing silence. The mere existence of the questions should not inevitably lead to legislative change. There is unquestionably a problem with NDAs being misused (although section 17 of the Victims and Prisoners Act 2024 makes them unenforceable if they prevent the reporting of crime). A ban on their use is straightforward and eye-catching, but legislation is a blunt instrument and should be a last resort; legislators should instead consider whether reform and regulation is a preferable option.
The Sun
08-07-2025
- Business
- The Sun
Victims of abuse in workplace will no longer be kept quiet by confidentiality agreements
BOSSES who try to silence workers subjected to sexual harassment or discrimination will have confidentiality agreements ripped up under new plans. Victims will no longer be kept quiet as employers will find that Non-Disclosure Agreements are made null and void. The move will mean that witnesses will be able to speak out publicly and support victims without the threat of being sued themselves. Deputy Prime Minister Angela Rayner said: 'We have heard the calls from victims of harassment and discrimination to end the misuse of NDAs. 'It is time we stamped this practice out – and this government is taking action to make that happen.' The confidentiality agreements have been used to restrict what signatories can say or who they can tell about such abuse. The changes are set to be introduced to the employment rights package which is currently going through Parliament. Ex-Cabinet Minister Louise Haigh MP said: "The Government's decision to ban NDAs in cases of harassment and discrimination is an incredible victory for victims and campaigners. "Victims of harassment and discrimination have been forced to suffer in silence for too long. "This legislation is the result of years of tireless campaigning by victims and advocates. "This victory belongs to them. Organisations like Can't Buy My Silence, led by the indefatigable Zelda Perkins, have exposed the harm caused by this toxic practice. She said it "will mean that bad employers can no longer hide behind legal practices that cover up their wrongdoing and prevent victims from getting justice". Zelda Perkins, who spearheads the Can't Buy My Silence campaign, was a former PA to disgraced Harvey Weinstein. She said: 'This is a huge milestone, for years, we've heard empty promises from governments whilst victims have continued to be silenced, to see this Government accept the need for nationwide legal change shows that they have listened and understood the abuse of power taking place. 'Above all though, this victory belongs to the people who broke their NDAs, who risked everything to speak the truth when they were told they couldn't. Without their courage, none of this would be happening. 'This is not over yet and we will continue to focus closely on this to ensure the regulations are watertight and no one can be forced into silence again. 'If what is promised at this stage becomes reality, then the UK will be leading the world in protecting not only workers but the integrity of the law.'
The Independent
07-07-2025
- Business
- The Independent
Angela Rayner to ban businesses from using NDAs to cover up harassment and discrimination
UK businesses will be barred from using non-disclosure agreements (NDAs) to silence victims of harassment and discrimination as a part of the government's bid to boost workers' rights. Angela Rayne r has proposed an amendment to the Employment Rights Bill which would void and prohibit such agreements against employees in such situations to prevent people from having to 'suffer in silence'. The deputy prime minister said the government had 'heard the calls from victims of harassment and discrimination', as she announced the move following repeated calls from campaigners and Labour politicians. Zelda Perkins, Weinstein's former assistant and founder of the campaign group Can't Buy My Silence UK, said the move was 'a huge milestone'. She said: 'For years, we've heard empty promises from governments whilst victims have continued to be silenced, to see this Government accept the need for nationwide legal change shows that they have listened and understood the abuse of power taking place. 'Above all though, this victory belongs to people who broke their NDAs, who risked everything to speak the truth when they were told they couldn't. Without their courage, none of this would be happening.' And, last month, the Commons Women and Equalities Committee called on the Government to ban NDAs to tackle misogyny in the music industry. The change comes after several high-profile cases of NDAs being used to silence victims of sexual harassment or bullying. In the case of former Hollywood producer Harvey Weinstein, victims were forced to breach such agreements to come forward. Zelda Perkins, Weinstein's former assistant and founder of the campaign group Can't Buy My Silence UK, said the move was 'a huge milestone'. She said: 'For years, we've heard empty promises from governments whilst victims have continued to be silenced, to see this Government accept the need for nationwide legal change shows that they have listened and understood the abuse of power taking place. 'Above all though, this victory belongs to people who broke their NDAs, who risked everything to speak the truth when they were told they couldn't. Without their courage, none of this would be happening.' Ms Haigh, who has raised the issue several times in Parliament, said the decision was 'an incredible victory for victims and campaigners' after years of 'tireless campaigning'. She said: 'This victory belongs to them. Organisations like Can't Buy My Silence, led by the indefatigable Zelda Perkins, have exposed the harm caused by this toxic practice. 'Today's announcement will mean that bad employers can no longer hide behind legal practices that cover up their wrongdoing and prevent victims from getting justice.' Ministers had previously indicated they were considering a ban on NDAs in cases of harassment and discrimination, while employment minister Justin Madders also called for a 'cultural shift in employers' earlier this year. Announcing the amendments, Mr Madders said: 'The misuse of NDAs to silence victims of harassment or discrimination is an appalling practice that this Government has been determined to end. 'These amendments will give millions of workers confidence that inappropriate behaviour in the workplace will be dealt with, not hidden, allowing them to get on with building a prosperous and successful career.' Peers will debate the amendments when the Employment Rights Bill returns to the Lords on July 14 and, if passed, will need to be approved by MPs as well.
Yahoo
07-07-2025
- Politics
- Yahoo
Government to ban 'appalling' non-disclosure agreements that 'silence' victims of abuse at work
Victims of bullying and abuse at work will no longer have to "suffer in silence", the government has said, as it pledges to ban controversial non-disclosure agreements (NDAs). Accusers of Harvey Weinstein, the former film producer and now convicted sex offender, are among many in recent years who had to breach such agreements in order to speak out about what they had endured. As Labour seeks to boost workers' protections, its ministers have suggested an extra section in the forthcoming Employment Rights Bill that would void NDAs designed to stop employees from going public about harassment or discrimination. The government said this would allow victims to come forward about their situation rather than remain "stuck in unwanted situations, through fear or desperation". Zelda Perkins, Weinstein's former assistant and founder of Can't Buy My Silence UK, said the changes would mark a "huge milestone" in combatting the "abuse of power". She added: "This victory belongs to the people who broke their NDAs, who risked everything to speak the truth when they were told they couldn't. Without their courage, none of this would be happening." Deputy prime minister Angela Rayner said the government had "heard the calls from victims of harassment and discrimination" and was taking action to prevent people from having to "suffer in silence". An NDA is a broad term that describes any agreement that restricts what a signatory can say about something, originally intended to protect commercially sensitive information. But "many high profile cases" have revealed NDAs being manipulated to prevent people "speaking out about horrific experiences in the workplace", the government said. The updated bill, if passed, would also mean witnesses can also publicly support without the threat of being sued. Announcing the amendments, employment minister Justin Madders said: "The misuse of NDAs to silence victims of harassment or discrimination is an appalling practice that this government has been determined to end." The bill is currently in the House of Lords, where it will be debated on 14 July, before going on to be discussed by MPs as well.
