Following the news that Prince Andrew and Virginia Giuffre settled out of court this week, for an undisclosed sum of money, my first thought was - I hope she didn't sign a Non-Disclosure Agreement. The settlement was without any admission of liability and Prince Andrew has always strongly denied the allegations. But, if anything is going to make the man (previously known as Prince) sweat, it’s that Virginia has not been gagged, which would enable her to talk freely about her experience as a survivor of sex trafficking.
All too often settlement agreements contain NDAs, or confidentiality clauses, which prevent a victim from speaking about their experience to anyone besides their spouse, therapist, or lawyer. Which means time and again, women are silenced.
Too much of my time is spent explaining this to people. Despite seven years of campaigning, people still don’t believe that 54,000 women a year get kicked out of their job for daring to procreate; or that mums returning from maternity leave are demoted because they kept a new human alive; or that women of childbearing age are denied opportunities because there is a risk they might get up the duff. People still look at me like I have two heads when I explain these facts, but that’s because NDAs silence the women experiencing this type of discrimination, and hide what is really going on behind the closed doors of UK companies.
I discovered this when I first set up my website on International Women’s Day 2015. It was a WordPress page that I created while bouncing a baby on one knee and spoon feeding him mashed-up banana. I set up a page for women to share their stories, and to raise the roof with our righteous anger, thinking: “If people just knew! We could stop all this!” I pressed the ‘publish’ button and waited and waited and... nothing happened. Radio silence. That was when I discovered the colossal, stifling power of the NDA. Because it’s not just the Harvey Weinsteins of this world who are using them to hide bad behaviour.
As I’m sure most of you know, NDAs often form part of a settlement agreement between employers and employees – it’s a legal contract intended to protect trade secrets and intellectual property but they are also commonly used to hide wrongdoing. If the person signing the NDA dare breach it, they risk being hauled over the legal coals, liable for thousands of pounds in damages, their reputation destroyed. In exchange for a lump sum of money and a guarantee nobody will be forced to go through the brutal experience of a tribunal, NDAs are often presented as a confidentiality clause that effectively hide an employer’s bad behaviour from the press, from customers, from colleagues, and future hires.
And believe me, the behaviour they cover up is bad. From women who announce a pregnancy only for their boss to demand they have an abortion, to bullying that can be so horrendous women end up in hospital, to sexual harassment that can be so prolonged and intense the victim develops PTSD, to equal pay claims that result in gaslighting and demotions.
We don’t know exactly how commonly NDAs are used because, by their very nature, they’re not disclosed to anyone. What we do know is that they are used in politics, because figures obtained by the BBC show that the House of Commons spent more than £2.4 million on settlement agreements which included confidentiality clauses between 2013 and 2017. We know they are used regularly in UK Universities because figures show that around £87 million was spent on payoffs attached to NDAs between January 2017 and April 2019. And we also know that charities aren’t averse to using them either – figures obtained by the a whistleblower complaint leaked to the Guardian accused the Alzheimer’s Society of spending £750,000 on NDAs in 2020 - although the Alzheimer's Society have disputed this figure and a Charities Commission review 'did not find evidence of wrongdoing,' allegations reported in the national media around the amount of money paid out in settlements were not substantiated by the evidence the Commission saw.
On International Women’s Day, social media will positively fizz with companies competing to tell you how much they value women. I can guarantee many of these companies will secretly be using NDAs to silence and harass their female employees. It is so frustrating watching companies sell products and win awards because of their self-professed dedication to gender equality, when I know that behind closed doors they are shoving women out of their job for getting pregnant, and, when they are at their lowest ebb, forcing them to sign a non disclosure agreement in exchange for a small amount of money.
According to our research with 542 women who signed an NDA after they experienced sex discrimination, 9 in 10 said they had absolutely no choice but to sign, and 78% said that NDAs were used repeatedly in their workplace to silence women.
Non Disclosure Agreements are a scourge on fair workplaces. They are used to silence women; to shut them down and prevent them from organising. You can’t fix what you can’t see, and so if we continue to allow the powerful to use these gagging clauses and to then deny their existence, we will never fix the inequalities that women experience.