How Can the Law Address the Problems that Arise from the Unethical Use of NDAs in the Workplace?

Introduction

The #MeToo movement, Presidents Club Dinner, Zelda Perkins case, and other investigations involving high-profile figures have revealed the unethical use of non-disclosure agreements (NDAs) by employers and members of the legal profession. NDAs have been used to unconditionally silence victims, preventing them from disclosing details of sexual harassment experienced in the workplace. The ‘Can’t Buy My Silence’ campaign aims to reassess the boundaries on the ‘abhorrent ongoing practice to buy silence from employees packaged up in an NDA’.1 This has put pressure on legislators to review how the law can address the misuse of NDAs against victims of sexual harassment in the workplace. In 2021, MP Maria Miller presented a Private Members’ Bill to the House of Commons to prohibit the use of NDAs which seek to silence the disclosure of wrongdoing experienced at work.2 The Bill aims to reverse the toxic work culture in the British workplace which is detrimental to both victims and the public interest. However, despite its promising motivations, this essay argues that the implementation of the NDA Bill should be approached with caution: it may have unintended consequences that add to the existing problems that arise from workplaces’ unethical use of NDAs. It is contested that the NDA Bill be introduced with some improvements, alongside  increasing the awareness of amendments to existing whistleblowing legislation, to protect victims of sexual harassment. 

This essay will focus on how the law (through the proposed NDA Bill and existing whistleblowing legislation) can play a role in addressing the problems that result from workplaces’ unethical use of NDAs. To do this, the essay will first make a distinction between the ethical and unethical use of an NDA, focussing on the suppression of free speech and coercion which is caused by the latter. Following this, the essay will argue that the NDA Bill may have the unintended consequence of making justice harder to achieve as the power imbalances between parties make it difficult for victims to prove that they did not agree to the terms of the NDA.

In light of this, the essay will consider the necessity of the Bill, suggesting that it does indeed serve a purpose: the protection of victims as a result of the inadequacies of existing whistleblowing legislation and cultural shifts. However, this purpose should not overshadow that other improvements to existing laws (the scope of ‘Protected Persons’ under whistleblowing law and the limits to confidentiality clauses) should also be achieved. Furthermore, the essay recommends that the NDA Bill be amended to require that employers pay for employees’ independent legal advice before signing an NDA following sexual harassment to provide more comprehensive support for victims and prevent the unethical use of NDAs in the workplace.

What problems arise from the unethical use of NDAs?

NDAs form a legitimate part of employment contracts, where they are used to protect trade secrets, data, and intellectual property, which could undermine a company’s competitiveness.3 Furthermore, they have an important use in settlements, where individuals sign an NDA that is genuinely in their own best interests. These are what are contained in the conventional, ethical uses of NDAs.4 However, employers often use NDAs beyond this purpose to prevent the disclosure of sexual harassment, alongside other criminal conduct, in the workplace. This unethical use, and the issues it generates, are the focus of this essay. The first problem that this essay will confront is the chilling effect that the unethical use of NDAs has on free speech, which has implications for society’s access to public information, our democratic values, and the course of justice.

Suppressing free speech and public discourse

NDAs are often used to protect the reputation of organisations and powerful individuals by making victims feel unable to speak openly, and in the public interest, about serious wrongdoing. A striking example of such is the NDA signed by Zelda Perkins, which included clauses that required her to receive Weinstein’s written permission if she wanted to disclose information to the police.5 The frequent drafting of stringent clauses within NDAs leaves individuals uncertain as to what can be disclosed to third parties.6 This clause would have been void under whistleblowing legislation in section 43J of the Employment Rights Act 1996 (ERA)7 as a protected disclosure (this allows employees to make certain disclosures of serious wrongdoing despite signing an NDA). However, an individual who signs an NDA containing such unenforceable clauses may not be aware of its invalidity due to the complexity and lack of legal awareness surrounding whistleblowing legislation. This prevents individuals from reporting wrongdoing out of fear that they will be in breach of contract.

In a recent study, seven out of every eight NDAs studied did not directly reference a continuing right to make disclosures protected by the ERA.8 The lack of awareness drawn to whistleblowing protections means that sexual harassment can continue since society is ‘designedly ignorant of potentially important insights into criminal, negligent or abusive behaviour or systemic malpractice on the part of powerful interests’.9 This is even more concerning considering the failings of internal whistleblowing systems in companies: most organisations either ignore or mishandle internal complaints, so serious problems fester in the background without being addressed.10 The fact that individuals are also prevented from raising problems to external third parties, under supposedly strict NDAs, when internal whistleblowing procedures fail raises an even larger concern for public discourse. Campaigners at Protect state that ‘too often whistle-blowers are left isolated when really, they are an employer’s and the public’s best warning system when things go wrong’.11 The inhibition of public awareness of these issues hinders the democratic notion of the general public’s right to know and openly scrutinise those impeding free speech in pursuit of reputation management.  

Coercion

The second issue focusses on the unfair advantage that wealthy individuals have when they use their powerful resources against vulnerable victims to ‘hide the truth in the shadow of the law’.12 When unenforceable clauses are included within contracts, victims have the choice to adhere to these ‘gagging clauses’ or challenge their validity. Victims are often in too weak a position to challenge these clauses, and thus are only left with one option: to stay silent. In the creation of NDAs which prohibit victims from speaking out, highly paid lawyers take an unfair advantage over their clients’ opponents who do not have the same resources. This is particularly prevalent in workplace disputes since the negotiations are often conducted in an environment of significant structural inequality;13 examples such as Perkins’s settlement demonstrate this unfair advantage tilted towards wealthy perpetrators.

Even if victims can manage to challenge these clauses, Moorhead emphasises the problematic use of ‘over-par offers’ where overwhelmingly high offers are made to victims, beyond what could be won at a final hearing.14 Even ordinarily, the high cost of bringing an employment tribunal claim is not matched by the potential for high compensation awards; indeed, successful claimants may not even be awarded enough to cover their costs. This puts financially vulnerable claimants (especially under a no-win-no-fee-agreement) in a position of significant risk with limited options but to adhere to the restrictive terms of an NDA. Furthermore, Parliament’s Women and Equalities (WE) Committee Report revealed that another barrier to pursuing claims through the employment tribunal system is the use of online tribunal decision reporting.15 This means that names can easily be searched by any prospective employer, which creates a negative impact on future job prospects for victims. The inappropriate application of professional power allows silence to be bought in a coercive environment where the law fails to protect justice.

Can the NDA (No. 2) Bill address the problems that arise from the unethical use of NDAs?

Justice is harder following the NDA Bill

It is important to emphasise that a blanket ban on the use of NDAs would be undesirable, since NDAs can, and do, serve some legitimate and ethical purposes. Many victims of sexual harassment avoid litigation as they are unwilling to have their traumas made known to the public, co-workers, or future employers. While it may be argued that total transparency and accountability is needed to address the problem, victims should not have to sacrifice their privacy as martyrs for the sexual harassment epidemic. At the very least, silence should be a victim’s right. Litigation can increase suffering, so it is understandable that individuals may prefer to protect their identity and receive compensation to recognise their treatment and maintain dignity.16 A ban on NDAs might mean that stronger parties will have a disincentive to make agreements to compensate victims, since this would risk the details of the case having an impact on their reputation in the future. Individuals would be forced to litigate to receive compensation, and whilst sexual harassment is a pressing problem, ‘expecting victims to do the fighting to stop it, risks adding injury to injury’.17 Where respondents are unable to buy silence, there is a greater motivation to try to defend the matter and their reputation during litigation, involving vigorous attempts to discredit victims. An outright ban on NDAs will result in fewer victims being prepared to raise issues for the risk involved, which merely perpetuates the current climate — where free speech is impinged and wrongdoing continues to occur; instead, victims would be prevented from even receiving financial compensation. 

As outlined, an outright ban on NDAs would be undesirable. While the proposed bill does not seek to impose a blanket prohibition, NDAs would be void only where an employer insists on one. In practice, it would likely be very difficult to evidence that an employer insisted on an NDA so this may have the same effect as an outright ban. Employers and their lawyers could easily insert provisions that the parties entered into mutual confidentiality terms without any insistence from the employer. The structural inequality that exists in workplace arrangements would mean that it will always be extremely difficult to establish whether an employee had confidentiality imposed on them, or whether they had agreed to it.

Another difficulty that the NDA Bill may face include its practical inefficiency. Lawyers, like Mr Mansell (who drafted the NDA between Weinstein and Perkins), would seek to find ways around the new law. For example, exclusivity terms in zero-hour contracts have been prohibited since 2015, but in practice, employers have indirectly achieved exclusivity through scheduling practices.18 Therefore, whilst Miller may have set out with good intentions, the Bill may have the unintended consequence of making justice even harder for victims. Thus, despite an outright ban not being proposed, due to the evidential and legal burden to displace that a mutual agreement has formed, victims will likely remain silenced.

Is the NDA Bill needed?

Whistleblowing legislation: complexity and unawareness

This leads to the question of whether the proposed NDA Bill is necessary since, at first glance, it may have the unintended effect of making the current climate worse. Introducing the proposed bill to the House of Commons, Miller stated ‘at the moment, non-disclosure agreements are completely unregulated’.19 Yet, this is false:  Section 43J of the ERA renders any NDA clause designed to prevent a worker from making a disclosure in the public interest void. Protected disclosures include those about malpractice, breaches of the law, miscarriages of justice, dangers to health and safety, or the cover-up of any such behaviour. Thus, disclosures about sexual harassment to the police would qualify as protected disclosures under this legislation. However, the current problem is that the law on protected disclosures is very complex; the grounds of which disclosures can be made and to whom are narrow and confusing. Knowledge surrounding whistleblowing legislation is also extremely poor. Protect’s investigation found that 52% of British adults were unaware that legal protection for whistleblowers existed.20 Therefore, while whistleblowing legislation exists, it remains unhelpful for the vast majority of employees who do not have access to legal advice to be made aware of their rights and the chance of a successful claim. 

Culture shift: organisational changes and soft laws ‘ha[ve] no teeth’21

The attitude of employers and employees has changed since the #MeToo movement. The public perception of what is acceptable behaviour in the employment context has shifted, empowering individuals to speak up about their experiences in the workplace. In the first year of the #MeToo era, on average, at least one prominent figure was publicly accused of misconduct every day.22 Now, where allegations are raised, there needs to be an investigation which is followed to action and conclusions: ‘it is simply not an option to “nip it in the bud” by entering into a settlement agreement while allegations remain uninvestigated’.23 Some business leaders have faced enormous pressure to prevent or eradicate workplace misconduct, and the speed and precision of their response is publicly scrutinised.24 Employers are now more transparent about their use of NDAs in the workplace and internal complaint responses.25 Especially since victims can easily share their allegations online, employers want to be ready to act positively and protect their reputations when made aware of these claims. The ‘Can’t Buy My Silence’ campaign, sparked by accusations on social media about the prevalence of sexual misconduct on university campuses, has culminated in just under fifty universities pledging to stop using NDAs for complaints about sexual harassment, bullying and other forms of misconduct.26 However, campaigns and pledges alone are insufficient, particularly in the private sector. Apple has received a negative reputation since the start of the #AppleToo movement, which saw the exposure of experiences of intimidation and abuse at the company.27 Yet, their response was not to support employees and enhance internal investigations, but to fire the leader of the movement. Furthermore, only 15% of surveyed organisations have changed the way they conduct investigations and internal reporting mechanisms.28 Therefore, while there has been a culture shift since the #MeToo movement, its impacts have clearly not been universal and with genuine effect.

In the wake of #MeToo there have also been a number of parliamentary inquiries and professional guidance has been issued to investigate and raise awareness of the unethical use of NDAs. In 2019, the WE Select Committee published a report outlining these issues.29 In response, the Advisory, Conciliation and Arbitration Service (ACAS) issued guidance to employers to consider alternatives to NDA use (such as implementing investigations, grievance, and disciplinary processes) and has generated a published list of the inappropriate uses of NDAs.30 They also encouraged employers to monitor NDA use to ensure that repeat offenders are disciplined. Yet, this guidance is non-statutory and retrospective, and whilst employers would be sensible to follow it to comply with best practice, unfortunately companies like Apple continuously choose to ignore it, silencing employees.

The Solicitors Regulation Authority (SRA) have also issued a warning notice stressing that a solicitor’s duty to act in their clients’ best interests does not override their professional obligation to uphold justice and integrity.31 It is commendable that the SRA was the first regulator in the world to issue guidance and warning notices on NDAs, especially since the guidance also seeks to tackle the unethical use of NDAs from a different perspective: without the lawyers to draft these agreements, victims cannot be silenced. Unfortunately, however, as Macfarlane notes, ‘guidance has no teeth’.32 Since NDAs have become the ‘default position’ among lawyers, response from regulation will be slow to follow because it would depend on a culture upheaval in the profession. Thus, while inquiries have exposed data on the issue, leading to regulatory developments, a harder legal approach is advised if the unethical use of NDAs is to be tackled with force.

What should be done to solve the problems that arise from the unethical use of NDAs?

ERA amendments: expansion of ‘Protected Persons’ and better awareness of the limits of confidentiality clauses

As explored above, while whistleblowing legislation exists to aid individuals who experience sexual harassment in the workplace, its use is unhelpful to victims due to its complexity and inaccessibility. Therefore, this essay argues that there needs to be greater awareness of Section 43 of the ERA. The WE Committee recommended that the government require the use of standard, approved confidentiality clauses which should set out the meaning, effect, and limits of confidentiality clauses in plain and accessible English.33 NDAs should also be required to include a clear explanation of what disclosures are protected under whistleblowing laws — which cannot be prohibited or restricted.34 This would provide employees with a more informed understanding of their legal protections under the NDA and prevent employees who want to report misconduct being silenced from doing so.

Furthermore, Protect’s ‘Let’s Fix UK Whistleblowing Law’ campaign seeks to widen the protection of the ERA. The current scope of protected disclosures is mainly limited to the police, which is largely ineffective since they may not prosecute because ‘casual sexism’ will not always amount to a criminal offence: ‘you cannot prosecute a culture’.35 The police has a well-documented history of a broader culture of discrimination and sexism within its institution and, as a result, this does not create a comfortable or reassuring environment for victims of sexual harassment to feel that they can report misconduct to.36 Therefore, this essay supports Protect’s aim to expand the range of prescribed people and bodies that can support victims.

The launch of the Protect campaign coincided with the EU’s 2019 Whistleblowing Directive.37 Whilst the UK has already left the EU and is no longer obliged to implement this, it is still required to keep up with EU levels of employment protection to maintain the ‘level playing field’ within the UK-EU Trade and Co-operation Agreement.38 Therefore, it is suggested that an amendment to the current ERA be made to expand the scope of ‘Protected Persons’ (the people victims can report instances of sexual harassment to) to include licenced health workers, social workers, and therapists. These individuals can be trained to provide a safe and private space for victims to share their experiences without fear of judgement or repercussion. This might encourage victims to speak openly and honestly about their experiences and explore their future options to decide whether they want to agree to confidentiality or disclose their experience in the public interest. Therefore, it is proposed that expanding the scope of the ERA and requiring that the limits of confidentiality clauses be clearer in NDAs would better recognise the vulnerability of victims and provide enhanced support to help them make informed decisions following sexual harassment.

NDA Bill: a powerful force

However, notwithstanding amendments and changes to the ERA, this alone will still not solve the issues that arise from the unethical use of NDAs in the workplace. If these measures were implemented alongside the proposed NDA Bill, this would be a more powerful and effective move to help victims seek help and justice. While this essay has explored the unintended consequences of the Bill, reforms to the ERA would help mitigate the problems that would arise. Under the NDA Bill, if victims cannot prove that they did not voluntarily agree to the NDA, they would be able to make better use of the protected disclosures within the ERA. The difficulty of litigation often results in a ‘fight or flight’ instinct for victims, where they either suffer the risks involved in going to a tribunal or they remain silent. Therefore, a valuable consequence of the NDA Bill would be the message it sends to employers, lawyers, and the public on the unethical use of NDAs. This effect should not be underestimated as the power imbalances between parties sit at the heart of this issue. As it will be more difficult for employers to insist on the use of an NDA to cover up misconduct, victims will be able to take control and make decisions in alignment with their best interests, with the alternative being ‘gagged’ due to a disparity of power and resources between parties.

NDA Bill: enhanced access to legal advice for employees

Enhancing access to quality legal advice and support for victims would also be a strong aid in helping victims understand the implications of signing an NDA and their options for disclosure. Currently, the proposed bill only recommends that employees have a ‘reasonable opportunity to receive independent legal advice’.39 This essay argues that the NDA Bill should be amended to include employees’ right to independent legal advice at the employer’s expense before signing NDAs following sexual harassment. Given the significant power imbalances within workplace sexual misconduct cases, requiring employers to cover the cost of independent legal advice would be a strong mitigating measure to mitigate such inequality and deter the unethical construction of NDAs. Giving sexual misconduct victims a legal right to receive paid legal advice would ensure that victims can better understand the legal limits of NDAs under the Bill and the ERA. While requiring employers to cover the cost of independent legal advice for employees might place an unwanted and large financial burden on organisations, it is argued that this is a necessary development to protect vulnerable victims and deter wrongful conduct. It is already  common practice for employers to cover the legal fees of employees where there is a settlement;40 whilst this is often a more cost-effective option for organisations, there are examples of powerful individuals paying for their victims’ legal fees following sexual misconduct even without an intended settlement.41 This recommendation would still allow victims to maintain their privacy and receive compensation but would also compel individuals to seek advice on their best options in the occurrence of wrongful conduct. Therefore, while this essay has been apprehensive about the implementation of the NDA Bill, it is argued that it will serve an important role to protect victims, but that this should not overshadow that further improvements to the Bill and whistleblowing legislation are necessary to prevent the unethical use of NDAs in the workplace. It is advised that whistleblowing legislation be amended to include a larger scope of protected disclosures and that the government requires that the limits of confidentiality clauses be drafted clearly within NDAs. The implementation of the NDA Bill will be beneficial to help victims understand the protections available to them, and mandating that employers pay for employees’ legal advice before signing an NDA following sexual harassment will also rebalance the structural inequalities that exist within these incidents.

Conclusion

In conclusion, this essay has examined the issues that arise from the unethical use of NDAs in the workplace used to silence sexual harassment victims. Despite there being a culture shift following #MeToo, it is necessary that the law ensures that victims are not silenced. However, as illustrated, a more rounded legal approach is recommended as implementation of the current NDA Bill alone might risk just ‘adding insult to injury’. Therefore, it is suggested that the Bill be cautiously implemented as this sends a powerful message to employers and has the potential, alongside whistleblowing legislation, to provide comprehensive and rounded support to victims.

This essay argues that the NDA Bill should additionally include provisions to require that employers pay for employees’ legal fees prior to signing an NDA following sexual harassment. This will empower victims with a choice after the occurrence of harassment in the workplace. Furthermore, the ERA should be expanded to include licensed health workers, therapists, and social workers as ‘Protected Persons’ to whom victims can make protected disclosures. It is also recommended that the government requires that confidentiality clauses are clearly drafted to include the limits on their use, alerting parties to the existence of protected disclosures which are permitted under the ERA. It is anticipated that these legislative proposals will prevent the infringement of free speech, miscarriages of justice, and poor professional ethics that exist where NDAs are used to silence victims of sexual harassment in the workplace. As a final note, while this essay has focussed on the unethical use of NDAs, it is important that we do not lose sight of tackling the sexual harassment that occurs — not just the silencing of it. Addressing both of these issues are vital to eradicate such conduct in the workplace.

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[1] Varsha Patel, ‘Adding Injury to Injury: Lawyers Split on Push to Revamp NDA Use’ (Law.com, 15 September 2021) <https://www.law.com/international-edition/2021/09/15/adding-injury-to-injury-lawyers-split-on-push-to-revamp-nda-use/> accessed 20 April 2022.

[2] Non-Disclosure Agreements (No.2) Bill HC Bill (2021-22) [2].

[3] Women and Equalities Committee, Sexual harassment in the workplace (HC 2017-19 725) para 108.

[4] Solicitors Regulation Authority, ‘Thematic Review: The use of Non-Disclosure Agreements in workplace complaints’ (Solicitors Regulation Authority, 14th August 2023) <https://www.sra.org.uk/sra/research-publications/thematic-review-nda/> accessed 2nd September 2023.  

[5] Women and Equalities Committee (n 3) para 115.

[6] Andrew Scott, ‘Hiding the Truth in the Shadow of the Law? Addressing the Misuse of Confidentiality Clauses in Public Authority Contracts’ in Kenyon and Scott (ed), Positive Free Speech: Rationales, Methods and Implications (Oxford: Hart Publishing, 2017).

[7] Employment Rights Act 1996, s 43(J).

[8] Comptroller and Auditor General, Confidentiality Clauses and Special Severance Payments (London: Stationary Office, 2013).

[9] ibid 154.

[10] Stephen Stubben and Kyle Welch, ‘Evidence on the Use and Efficacy of Internal Whistleblowing Systems’ (2020) Journal of Accounting Research 58_.

[11] Protect, ‘The Best Warning System: Whistleblowing During COVID-19’ (Protect 2020)

[12] Scott (n 6) 154.

[13] Cailin Stamarski and Leanne Son-Hing, ‘Gender inequalities in the workplace: the effects of organizational structures, processes, practices, and decision makers’ sexism’ (2015) Frontiers in Psychology 6.

[14] Raab MP v Associated Newspapers Ltd [2011] EWHC 3375 (QB) at [60] per Tugendhat J.

[15] Women and Equalities Committee (n 3) 28.

[16] Rachel Suff, ‘Would a ban on NDAs help prevent harassment?’ (CIPD, 7 March 2019) <https://www.cipd.co.uk/news-views/cipd-voice/issue-17/ban-ndas-prevent-harassment#gref> accessed 20 April 2022.

[17] Patel (n 1).

[18] Katie Jacobs, ‘Exclusivity ban fails to ‘adequately address’ zero-hours contracts’ (HR, 27 May 2015) <https://www.hrmagazine.co.uk/content/other/exclusivity-ban-fails-to-adequately-address-zero-hours-contracts-says-pickavance> accessed 30 April 2022.

[19] HC Deb 14 September 2021, vol 700, col 834.

[20] Andrew Pepper-Parsons, ‘UK whistleblowing law’ (Protect-advice.org, 9 June 2021) <https://protect-advice.org.uk/why-is-the-government-waiting-to-reform-uk-whistleblowing-law/#_ftn1> accessed 20 April 2022.

[21] Nick Hilborne, ‘NDAs “cannot be controlled by regulators”’ (LegalFutures, 15 September 2021) <https://www.legalfutures.co.uk/latest-news/ndas-cannot-be-controlled-by-professional-regulators> accessed 28 April 2022.

[22] Riley Griffin, ‘#MeToo: One Year Later’ (Bloomberg, 5 October 2018) <https://www.bloomberg.com/graphics/2018-me-too-anniversary/> accessed 28 April 2022.

[23] Joseph Lappin, ‘Would the proposed ban on non-disclosure agreements in sexual harassment cases work?’ (Stewarts, 27 September 2021) <https://www.stewartslaw.com/news/would-the-proposed-ban-on-non-disclosure-agreements-in-sexual-harassment-cases-work/> accessed 28 April 2022.

[24] FT Reporters, ‘CBI cancels events as pressure mounts over workplace misconduct’ (Financial Times, 4 April 2023) <https://www.ft.com/content/6dd63d9b-69b9-45e9-b292-0f7dd8aae396> accessed 2 September 2023.

[25] Equality and Human Rights Commission, ‘McDonald’s signs a legal agreement with EHRC to protect staff from sexual harassment’ (2023) <https://www.equalityhumanrights.com/en/our-work/news/mcdonald%E2%80%99s-signs-legal-agreement-ehrc-protect-staff-sexual-harassment> accessed 2nd September 2023.

[26] Can’t Buy My Silence, ‘Universities Pledge List’ <https://cantbuymysilence.com/universities-pledge-list/> accessed 28 April 2022.

[27] Dani Anguiano, ‘#AppleToo: employees organize and allege harassment and discrimination’ (The Guardian, 3 September 2021) <https://www.theguardian.com/technology/2021/sep/03/appletoo-apple-employees-organize-allege-harassment-discrimination> accessed 28 April 2022.

[28] Proskauer, ‘Workplace Complaints in the #MeToo Era’ (Proskauer, August 2018) <https://prfirmpwwwcdn0001.azureedge.net/prfirmstgacctpwwwcdncont0001/uploads/fe1018b2948f3b5ea189d54086b624d7.pdf> accessed 28 April 2022.

[29] Women and Equalities Commission (n 3).

[30] ACAS, ‘Non-disclosure Agreements’ (acas.org, 10 February 2020) <https://www.acas.org.uk/non-disclosure-agreements> accessed 28 April 2022.

[31] Solicitors Regulation Authority, ‘Warning Notice: Use of Non-Disclosure Agreements’ (SRA, 12 November 2020) <https://www.sra.org.uk/solicitors/guidance/non-disclosure-agreements-ndas/> accessed 2nd September 2023.

[32] Hilborne (n 21).

[33] The Women and Equalities Committee, The use of non-disclosure agreements in discrimination cases (HC 2017-19 1720)

[34] Women and Equalities Committee (n 4).

[35] Nick Davies, ‘Firms face ban on use of gagging clauses’ (Telegraph, 4 March 2019) <https://www.theguardian.com/uk-news/2019/mar/04/firms-face-ban-on-use-of-gagging-clauses-to-silence-whistleblowers> accessed 28 April 2022.

[36] Louise Casey, ‘An independent review into the standards of behaviour and internal culture of the Metropolitan Police Service’ (Metropolitan Police, March 2023) <https://www.met.police.uk/police-forces/metropolitan-police/areas/about-us/about-the-met/bcr/baroness-casey-review/> accessed 03 September 2023.

[37] Directive (EU) 2019/1937 of the European Parliament and of the Council of 23 October 2019 on the protection of persons who report breaches of Union law [2019] OJ L305/17.

[38] Trade and Corporation Agreement [2021] OJ L 149.

[39] NDA Bill (n 2).

[40] Lucas Nacif, ‘Payment of legal costs under a settlement agreement – tax considerations’ (Farore law, 30 August 2022) <https://farorelaw.co.uk/insights/payment-of-legal-costs-under-a-settlement-agreement-tax-considerations> accessed 03 September 2023.

[41] Maddy Mussen, ‘All the major revelations from Phillip Schofield’s emotional BBC interview’ (The Evening Standard, 02 June 2023) <https://www.standard.co.uk/insider/phillip-schofield-interview-bbc-iplayer-the-sun-affair-scandal-runner-b1085193.html> accessed 03 September 2023.

Zoya Yasmine

LLB (LSE) ’23, LLM Candidate (Cantab) and Notes Editor of the LSE Law Review Summer Board 2023