Greg Wright: In the age of #Metoo, non-disclosure agreements must not be used to silence whistleblowers

IT’S a harrowing report that shames us all.

Whistleblowers are being driven to despair.  Photo: David Cheskin/PA Wire
Whistleblowers are being driven to despair. Photo: David Cheskin/PA Wire

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The new study from the All Party Parliamentary Group on Whistleblowing (APPG) paints a terrible picture of the consequences faced by employees who have the courage to challenge misconduct within their organisation.

One whistleblower told the group: “I was ostracized by staff members and management which made me feel very isolated and uncomfortable. I was watched like a hawk and people were chatting about me behind my back .”

Another said: “My work was checked, and other staff were canvassed regarding their opinions of me. I felt very much under threat. I had to ensure that I made no mistakes of any kind that could be used against me.”

The APPG is particularly concerned about the widespread use of non-disclosure agreements (NDAS) to silence whistleblowers.

This section of the report should be studied by every private and public sector employer in Britain.

The report says: “The UK has become familiar with NDAs and similar terms (‘confidentiality agreements’, ‘gagging clauses’, ‘super gag’ etc) since the rise of the #MeToo movement.”

The success of the #MeToo movement, which is tackling sexual harassment at work, shows what can happen when we allow victims to speak out.

Evidence from the survey and research shows that organisations use NDAs to cover up the wrongdoing reported by whistleblowers.

So what are NDAs and how do they work? NDAs are legally binding agreements between the organisation and whistleblowers, which generally impose on the latter the obligation not to reveal damaging information outside the organisation. This can be adopted as part of a settlement agreement following a dispute between a whistleblower and the organisation. They can be a possible epilogue to the cycle of abuse.

Settlement agreements can include, for example, other clauses requiring the whistleblower to withdraw all allegations, agree that grievances have been satisfactorily investigated and accept the compensation as settlement in full of present and future claims.

Shockingly, MPs found that some whistleblowers had been forced to agree to press releases being issued that misrepresented the facts or the views of the whistleblower.

To quote the APPG report, “The testimonies gathered in our call of evidence confirm that there is a stark imbalance of power and resources between the organisation and the whistleblower.

“Whistleblowers can come to the settlement agreement after years of struggle with their employer and emotionally and psychologically strained.

“Moreover, organisations have financial resources to afford long legal battles which most whistleblowers lack.

“All this gives whistleblowers a very limited scope to resist the pressures of their employer to sign a settlement agreement or to ask to modify it.

“The result is that whistleblowers will feel forced to sign an agreement they do not really understand or they do not really consent to, but which will have permanent effects on their life and on the destiny of the case they have disclosed.”

In evidence submitted to MPs, whistleblowers have told how they felt cheated and had become a prisoner to these agreements. Attempts to have them reviewed had often been rejected.

Some of the whistleblowers interviewed disclosed that they had felt pressurised by their own lawyer to comply with NDA, and others have gone on to successfully challenge them.

It’s hardly surprising that the APPG is calling for non-disclosure agreements in whistleblowing cases to be banned.

But this ban will only be effective when the whistleblowers have a powerful individual to fight their corner. That’s why the new Prime Minister must establish an Independent Office for the Whistleblower with the power to set standards and impose meaningful penalties on individuals and organisations.

Banning NDAs would be a giant leap forward in ensuring nobody is persecuted for having the guts to do the right thing.