Victims to be freed from silence under proposed NDA reforms
“NDAs are too often used to sweep criminality under the carpet – trapping victims into silence and denying them justice. This must end,” Alex Davies-Jones, Minister for Victims and Tackling Violence Against Women and Girls said last month.
The powerful statement formed part of an announcement from the Ministry of Justice introducing further legislative amendments as part of the Government’s clampdown on the widespread misuse of non-disclosure agreements.
The legislative changes seek to reform the Victims and Prisoners Act 2024, enabling victims and direct witnesses of criminal conduct to share their experiences without fear of facing legal repercussions. Currently, the Act prohibits the use of non-disclosure agreements to prevent victims from reporting criminal conduct to the police, seeking legal advice or accessing victim support services. Under the proposed amendments, these protections will be extended, allowing victims to freely communicate with anyone about their experience for any purpose.
These amendments are highly compatible with the proposed reforms to the Employment Rights Bill, which seek to ban the use of non-disclosure agreements, or ‘gagging orders’, specifically in the context of workplace misconduct. Historically, such agreements have been used to suppress victims from disclosing workplace bullying, harassment and discrimination, thereby enabling toxic workplace cultures in which perpetrators act with impunity, and abusive conduct remains unchecked.
Regrettably, during settlement negotiations where there have been instances of criminal conduct, it is common for victims to feel intense pressure to enter into non-disclosure agreements.
The amendments to the Victims and Prisoners Act will introduce criteria for “excepted non-disclosure agreements” in “limited, legitimate circumstances”. This proposed provision is likely to mimic that of the Employment Rights Bill which, if enacted, would enable victims to request such agreements, thereby allowing them the option of confidentiality, whilst enhancing their negotiating powers in settlement discussions.
However, concerns have been raised regarding the implications these provisions will have on employers’ willingness to settle disputes amicably, without resorting to litigation. Data gathered by activist group Can’t Buy My Silence has revealed that in jurisdictions where similar prohibitions have been enacted, for example, certain states in the USA, the number of out-of-court settlements has increased, simply on more equitable terms.
By preventing the use of confidentiality agreements to silence victims, the Government is sending a strong message that the era of impunity is over. In the workplace context, this shift is likely to oblige employers to tackle the root causes of misconduct, namely toxic workplace cultures.
To align themselves with the changing legal landscape, organisations must take proactive steps to address workplace misconduct, not only to avoid legal liability but also to foster safer and more accountable working environments.
In doing so, employers should carry out thorough reviews of their existing policies and procedures to ensure compliance with the proposed laws and best practice. The implementation of comprehensive zero-tolerance policies is essential, as is providing regular training on inappropriate, and criminal, workplace conduct. Transparency must be prioritised through clear and accountable investigation procedures.
Establishing workplace cultures that encourage victims and witnesses to report misconduct will be a vital tool in preventing the rise of toxic and abusive environments. Where employees feel confident in raising concerns early on, organisations can proactively mitigate risks before they escalate into more serious matters.
Ultimately, the amendments to the Victims and Prisoners Act 2024 are highly welcome and will undoubtedly contribute to the establishment of safer working environments, whilst simultaneously restoring faith in the justice system.
