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After muffling the ad industry, workplace harassment NDAs face a government review

The outcome of the probe will determine how the marketing and media industry comes to use NDAs against the backdrop of #MeToo / MeToo - Twitter

The UK government has launched an enquiry into the use of non-disclosure agreements (NDAs) in workplace harassment cases – including those used to silence people who claim to have faced sexual harassment, racial abuse or maternity discrimination.

Following its recent enquiry into sexual harassment in the office, the Women and Equalities Committee will look at the broader use of NDAs in “cases where any form of harassment or other discrimination is alleged”.

NDAs are a legally binding and require parties to keep confidentiality for a defined period of time. Since the #MeToo scandal erupted, their role in the workplace has been the subject of fierce debate.

“Use of NDAs in sexual harassment cases is only part of the picture. This new inquiry will focus on their wider use in other cases involving other forms of harassment or discrimination,” said the committee chair Maria Miller.

The outcome of the probe will determine how the UK marketing and media industry comes to use NDAs against the backdrop of its own #MeToo moment and an increased focus on calling out predatory behaviour, bullying and discrimination.

The government review will look into whether there are particular types of harassment or discrimination for which NDAs are most likely to be used; whether they should be banned or restricted in such cases; the safeguards put in place to prevent misuse; and whether some employers use NDAs to "repeatedly to deal with cases involving a single harasser".

A recent study conducted by the Advertising Association (AA), Women in Advertising and Communications (WACL) and the National Advertising Benevolent Society (Nabs) found that 25% of people had been sexually harassed in the workplace, including 34% of women and 9% of men.

Overall, 72% of complainants had been sexually harassed more than once, while a quarter said more than six times. 30% also witnessed a colleague being harassed.

The report was drafted as part of the cross-industry timeTo campaign, which looks to promote a code of conduct for to establish acceptable standards of behaviour within the workplace and beyond.

Times up for NDAs?

The launch of the government investigation follows on from ad equality campaigner and founder of Make Love Not Porn Cindy Gallop urging the industry to call “times up” on the NDAs used to gag victims. She said she has received “hundreds of emails in her inbox from women who’d been forced to sign them.”

The Drum has been contacted by at least two people from network agencies who were asked to sign NDAs in cases involving workplace harassment – including allegations of sexual harassment and bullying.

Along with timeTo, the Institute of Practitioners in Advertising (IPA) has sought to get the industry to hold a mirror up to its own behaviour and prevent the need for NDAs altogether, publishing guidelines for members on bullying and harassment.

The group wants agencies to enable a culture of mentoring and ensure their HR resource is trained in handling complaints of a "sensitive nature".

The practice of NDAs within the wider business industry was further put under the spotlight last month when Topshop owner Sir Philip Green was revealed to be the anonymous figure at the centre of a #MeToo scandal.

Green, who stands accused of sexual harassment, bullying and racial abuse attempted to prevent the Telegraph from printing the claims with a temporary injunction.

He was later named in parliament, after the paper reported he had made "substantial payments" as part of NDAs with five people. Green has repeatedly denied the allegations against him.

The government probe will also explore how easy is it for employees and employers to access good quality legal advice on NDAs and how quality and independence of legal advice for employees negotiating severance agreements be assured when advice is paid for by the employer.

The committee is asking for submissions from the public by Wednesday 28 November.

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