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Can’t Employers Live Without Gagging Orders?

Employers’ use of non-disclosure agreements (NDAs) is destroying lives, says Maria Miller MP. As chair of the Women and Equalities Committee, she’s begun a campaign to ban ‘gagging clauses’ too often used by the powerful to “cover up unlawful and criminal behaviour”.

The Committee has recommended action to ensure confidentiality clauses aren’t allowed to be used without spelling out exactly why – all allegations need to be investigated properly; a senior member of an organisation should be given responsibility for overseeing discrimination cases, and for there to be a doubling of the three-month time limit for dealing with sexual harassment and discrimination tribunal cases.

Over time, as more hidden stories are revealed it’s clear that NDAs are being misused. They still serve a practical – and sometimes essential purpose for organisations. How else do employers make sure employees don’t share sensitive, valuable information?

There are some problems with what’s being recommended for the future. It shouldn’t be assumed that any senior figure in an organisation will be the best person to make independent judgements on sensitive cases. Seniority doesn’t guarantee impartiality; confidence in our long experience and perceptive can lead to casual – and dangerously misguided – assumptions about personalities and the situations they’re in. Anyone involved needs professional training in cultivating the necessary attitudes, behaviours and listening skills. Extending the timeframe for sexual harassment and discrimination tribunals may look practical, but would only lead to an extension of the period of stress, pain and disruption for all those involved.

What’s needed is a healthier culture. There’s always going to be those with power, those with less, but that’s not an issue when workplace relationships are healthy, built on openness, understanding and trust. A major worry expressed to the Committee by those affected by an NDA was that no matter what legislation is brought in, the imbalance of power means employers will find a way to exert pressure to secure their silence, to get the best outcome for them. In other words, there are low levels of trust.

Employers need a clear plan for managing workplace relationships. Training and processes that become embedded so that staff begin to have more confidence in the principle that their issues and grievances are going to be handled in more informal ways. Conflict starts to look and feel like a constructive part of organisational life – something that happens when conventions are being challenged when different ideas are being pushed through.

Whatever the situation, there are always going to be many stages at which a serious incident, embarrassment or fall-out can be avoided. Crucially, managers and staff need ‘Conversational Intelligence’ – something which can be learnt and practised – until no-one ever feels as if their problems are unimportant or unsolvable, there’s always a constructive way to reach a resolution.

Conversations only improve when they are a natural and regular part of working lives, not as an event – being summoned to a meeting, or into a weekly team slot. HR needs to make sure there are consistent messages about expectations from staff in terms of open conversations – and make it clear about what support and development is available; encouraging senior managers and leaders to be the main role models, and put more time and resources into supporting people to move towards dialogue with each other and away from escalating their negative feelings.


Arran Heal

Arran Heal is the Managing Director of CMP Resolutions. MORE >

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