Zelda Perkins, the whistleblower at the heart of the Harvey Weinstein scandal, has accused the UK government of “drinking the Kool-Aid” on gagging clauses and called for an end to confidentiality agreements that cover up workplace harassment.
The misuse of non-disclosure agreements became a concern in 2017 after a number of women, including Ms Perkins, broke confidentiality agreements to make allegations of sexual harassment against Harvey Weinstein, the film producer. Subsequent allegations of confidentiality clauses being abused by powerful business figures prompted a consultation by the department of Business, Energy and Industrial Strategy.
Ms Perkins dismissed the government consultation as a “tick-box exercise” that left her “pretty shocked and disappointed”.
The consultation promised new laws that would require those signing an NDA to first take independent legal advice and said it would introduce new enforcement measures for those who did not comply with the new regulations. However, NDAs remain legal and, according to the Equality and Human Rights Commission, shrouded in a “culture of secrecy”.
Last week the EHRC, Britain’s human rights watchdog, issued new guidance on the use of NDAs, warning that employers should not use them to prevent workers from whistleblowing or reporting criminal offences, and said workers should never feel rushed or under pressure to sign confidentiality clauses.
In an interview with the Financial Times, Ms Perkins, the former UK assistant to Mr Weinstein, said NDAs should be banned for use as “secrecy agreements to cover up poor behaviour” in workplaces. She said there was “huge fear” among victims of sexual harassment, who felt unable to speak out. “People are still absolutely in thrall to these agreements,” she said.
“There is a marked difference today in the fact that the conversation is open and out there and that’s hugely important, but you would imagine that after two years we would have seen more than that,” she said, adding “the government’s response has been negligible”.
NDAs were originally intended to protect the leaking of trade secrets, but they have become commonplace in covering up harassment claims. Since 2017, the government, the Law Society and the Solicitors Regulation Authority, the regulatory body for solicitors, have all attempted to rein in their misuse.
Campaigners and lawyers have also argued for greater transparency over workplace confidentiality clauses.
“There should be one person who can monitor how many agreements have been entered into [in a workplace], whether there are pockets of them, and why,” said Richard Fox, an employment partner at law firm Kingsley Napley.
He said there had been a “huge amount of focus on changing this culture,” and his firm was “much more wary about advising clients to enter into NDAs or prepare NDAs where we’re exiting employees.”
BEIS said its proposals would take time to come into force because they require primary legislation.
But Ms Perkins said she was disappointed that the government had still not outlawed the use of NDAs for covering up bad behaviour.
“Currently the law and regulation works in favour of the powerful and powerful people still act with impunity because they have the ability to wield the law and have power over employees,” she said.
“If you’re an employee and you get abused or discriminated against at work you might feel more confident in speaking out at this point because of the current public conversation but I don’t believe you would be in a much stronger position.”