Employment Equality (Amendment) (Non-Disclosure Agreements) Bill 2021: Second Stage

I move: "That the Bill be now read a Second Time."

I wish to share my time with Senator Higgins.

Is that agreed? Agreed.

I thank the Minister for coming to the House this evening. I thank my colleagues in the Civil Engagement Group for their support and sponsorship for this important legislation and for allowing it to be taken during our group’s Private Members' time. I also thank Sebastian McAteer in my office for drafting the Bill and everyone who has been involved in getting to this Stage, including the National Women’s Council and amazing activists on the international stage such as Dr. Julie Macfarlane, Zelda Perkins, Georgina Calvert-Lee and Ifeoma Ozoma who have so generously fed into this process to date by sharing their personal experiences and insights. I also thank Tobi Lawal and Yara Algaha for their ongoing research on this issue for my office.

I thank the Minister, Deputy O’Gorman, and the officials in his office for their engagement with me in recent weeks on the Bill’s provisions and other colleagues in the House for indicating their support and for attending the Bill’s virtual launch on Thursday last, in particular the Cathaoirleach, Senator Mark Daly, and other stakeholders.

Part of my motivation for working on this legislation in recent years has been in support of a number of friends who unfortunately signed non-disclosure agreements, NDAs, before we really understood how far-reaching they were in the community sector. In the community sector State money would have paid for those legal fees. As I looked into it in more detail, I realised how widespread the use of NDAs was. A few years ago, a group of university academics decided to contact me confidentially about the use of a non-disclosure agreement in their university relating to the same repeat offender who was moved around the college and then eventually on to another school.

It is said that these are used throughout the technology industry and in other sectors, including in legal firms. It is very widespread but also very hidden because people are terrified to speak out against them. We were also contacted by a number of legal professionals who, when they saw our research go out, were concerned that they are obliged to use them as part of their work. They do not want to use them and are concerned at how far-reaching some of them are.

Our research highlighted the misconception that these are in the best interests of the victim. That is how it is framed to a person after probably their most vulnerable point. After weeks, months or years of bullying, sexual harassment or gender-based harassment when they are offered the NDA, they just want out. They cannot say where they are and they will sign anything just to allow them to walk away and try to build their lives back up again. However, like everything, that changes. It takes more than just time to heal from abuse, sexual harassment or discrimination.

It also takes away the person's voice in the end. Most people want to speak up. Our research has found that after a few months or maybe a bit of distance from the situation in most cases women have regretted that they are now in this legal bind where they cannot speak about what they went through.

Our research found that one of the concerns related to reputation. Colleges or firms, including firms in the tech industry do not want to damage their reputation by allowing somebody to speak out. It is very sad that organisations want to build their reputation on silencing victims. We should want to build our reputation on empowering and protecting victims, not the perpetrator.

I could speak about so many areas affected by this, including the idea of two third parties and who is not at the bargaining table. Someone who is discriminating against or bullying a colleague may be protected and then given a glowing reference so that the employer can move them on. It is known in the industry as "pass the trash". Employers wipe their hands and are thankful to get rid of them but they have simply gone on to some other unsuspecting university or place of work. There is generally a pattern to their behaviour. When we are sitting down and we are signing an NDA between an employer and an employee or a perpetrator and a victim, we are not only signing it in terms of the people who are in that room. We need to think of the third parties who are also being endangered by giving a glowing reference for someone to start over again without their pattern of abuse ever being picked up because of NDAs.

What is a non-disclosure agreement? It is a legal agreement that ensures silence and allows for such principles to be protected and a legal basis to protect perpetrators. It is simply untrue and a further manipulation of a victim to imply that settlements require NDAs. NDAs are required to protect the employer's reputation and the perpetrator's identity.

If they were in the best interest of the victim then it is only the victim that they would protect. We should be under no illusion; this is not the case.

In fact, when victims are stepped back from the harmful situation and away from the scene of their harassment or discrimination, they begin to feel stronger in themselves and want to speak out.

No one denies that there are many scenarios where a legal non-disclosure agreement may be needed or even desirable. Trade secrets may need to be protected, industrial relations in progress may need to be safeguarded and intellectual property may need certain legal protections and guarantees. However, in recent years in Ireland and in other jurisdictions around the world, we have seen a certain creep emerge, where NDAs are now cropping up in scenarios where they were never originally envisaged and where the legal silence that they both cause and effect are actively damaging the public interest and the common good. Openness, transparency and accountability are fundamental principles of a functioning and fair society. They underpin our democratic systems and the code of conduct by which we all engage with each other in public life.

The right to share the details of one's own experience is a fundamental right, a human right, one tied up in the fundamental principles of freedom of expression. Any legal instrument that restricts individuals, groups or communities from exercising said rights must be treated with extreme caution, due to the risk that such agreements and the silence that they cause could eventually lead to.

When such abuse happens in the workplace, a victim may decide that remaining in a workplace with an abuser is simply too painful, if a perpetrator is not terminated, as is often the case. That victims would then be faced with a legal non-disclosure agreement and forced into unwanted legal and enforced silence about their own painful experience is utterly and totally indefensible. This practice must be banned and that is why I am proposing this legislation. It will allow victims the time and space to recover from their experiences without a shroud of legal silence preventing them from sharing their trauma.

In terms of the legislation itself, it is a relatively short Bill. It would insert a new section 14B into the Employment Equality Act 1998, as amended, to stipulate that the use of non-disclosure agreements that relate to sexual harassment and discrimination in the workplace would be extremely restricted and regulated. Essentially, all such agreements would be banned, other than those that are requested by the victims themselves to protect their own confidentiality, that is, the so-called victim's exception. However, the Bill sets out a number of very robust conditions that would be needed for such an NDA requested by the victim to be enforceable.

First, the victim must have been offered independent legal advice provided at the expense of the employer. Second, there must have been no undue attempts to influence the victim to include a confidentiality clause. Third, the agreement shall not adversely affect the health or safety of a third party not involved in the making of the NDA or the public interest more generally. Fourth, the agreement must include an opportunity for the victim to waive confidentiality in the future if he or she so chooses. Finally, the agreement must be of a set and limited duration.

In terms of the Bill's other provisions, we would make it illegal for an employer to enter into an NDA with just the perpetrator in order to cover up his or her unacceptable behaviour. Furthermore, we would make any subsequent NDAs that were signed but were not made in accordance with this Bill null and void and it would be an offence to enter into such a contract. Furthermore, in terms of retrospectivity for NDAs signed before the enactment of this Bill, they would only be enforceable going forward if they had also been made in accordance with the strict provisions set out earlier.

Furthermore and later in the Bill, subsection (8) sets out important provisions relating to information sharing that even an NDA that is legally signed under this Bill cannot apply to, for example, whistleblowing under the protected disclosures legislation, communications relating to the harassment by the Garda, a lawyer or a therapist. Finally, the Bill would require that agreements made under this Act must be written in plain English, insofar as is possible, that the Minister would make regulations for a standard form for such agreements and that the Minister would also issue guidelines on the use of NDAs in employment equality practice for employers, employees and the legal profession.

The last provision would ensure that non-disparagement agreements, that is, agreements that prevent a person from being critical of an employer, would not become a backdoor to further NDA abuse in this area by ensuring that any non-disparagement agreement that restricts a victim from sharing details relating to harassment or discrimination would be covered by the restrictions put in place by this Bill.

Those are the provisions of the Bill. I believe that they are fair and generous in how they support the autonomy and voice of victims of harassment to make themselves heard. I believe it would be one of the most comprehensive regulations of this area in any jurisdiction in the world and would allow Ireland to become a real leader as we continue to shine a light on the treatment of the marginalised at the hands of the powerful, both in our modern day society and as we look back to reckon with a shameful history of institutional abuse and incarceration, particularly of women, minorities and the marginalised.

I am very proud to second this Bill introduced by my colleague, Senator Ruane. I commend her and her assistant, Sebastian McAteer, on the work they have done in introducing an important piece of legislation, one that is needed internationally. It has been really remarkable to note the level of distress caused by them and the concern around the abuse of NDAs internationally that has arisen in response to this legislation, based on what was an initial area of inquiry on NDAs within one realm. That shows how necessary the Bill is. The event to launch the Bill was very powerful because it showed us that this is something being sought internationally. Crucially, NDAs do not just compound the abuse of a victim, they also represent an abuse of the law and the spirit of the law and that is what is important. In my limited time I will highlight those two strands, which are equally important in underscoring why this legislation is needed.

Georgina Calvert-Lee, who is an equality and employment lawyer with great experience of NDAs in the United States, spoke about the fact that NDAs were a form of legal agreement originally designed to protect trade secrets which became weaponised as a tool to suppress human rights. She explained how far NDAs have strayed from their original purpose and the fact that there has been a conflation of issues. If a person gets a settlement, an NDA will be attached, but there is no necessary connection and they do very different things. They are at odds with each other. A settlement is a reparative recognition of damage that has been done, whereas an NDA is the disappearing of the evidence of the damage. It is the denial of that damage on the record. They are in fact very much at cross purposes in many cases in situations of abuse. One has a reparative role and the other compounds the trauma.

In terms of the silencing, we have heard from whistleblowers who spoke about NDAs which, for example, do not allow them to speak to a therapist. Zelda Perkins spoke about the real trauma beginning after signing an NDA, when she realised she could not speak to a therapist or her family. It is very different to have something that is a trade secret, intellectual property or something that belongs to an organisation or employment, and something which is effectively one's life and story. That is really important. Let me be clear: there is nothing in this Bill that requires people to share their story, but it empowers people to shape their own narrative going forward.

When we look at the debates we have had in this House on mother and baby homes and the impact of gagging orders and waivers in the past, we know that when people are silenced their desire to tell their story does not disappear after two years, five years, ten years or 15 years. They carry the damage of their story not being told all the way through their lives. That is why the Bill is important. It is important for individuals in terms of the damage caused but, crucially, it is necessary for society. So many sexual abuse cases very often end up in a scenario of "he said, she said", of two narratives placed against each other. What we have seen regarding NDAs is also "he said, she said" but with the same perpetrator. Each individual does not have to go and battle for justice with a huge raft of evidence of a pattern of abuse not being recognised by an institution. People are being put into a gladiatorial situation with somebody who has a pattern of abuse that is not recognised because of the use of NDAs. That means we do not get the systemic change that we need and that institutions do not address situations of serial concern and serial abuse. The extraordinarily impressive individuals who have aligned themselves with my colleague's Bill have done so because they have that record. I refer to people like Julie Macfarlane, who won the Order of Canada for her work on sexual abuse, who has championed this legislation.

In terms of society it is also important to recognise that NDAs are agreements specifically designed to pervert the course of justice. For example, many of them say that one should not speak to the police.

That is why there are provisions in the Bill that specify authorities such as the Garda, mental health professionals, the Office of the Ombudsman and Revenue. It is to ensure that the obligation that individuals have, and the desire that people have to improve society on the basis of their experience, will not be thwarted and that best practice will not be perverted for society as a whole.

Finally, it is important that we do not just support these sentiments in principle and then just tell individuals not to sign NDAs or organisations to try to employ best practice and not use NDAs. We need to send a signal in legislation. We need to take NDAs off the table in sexual abuse cases in order that there will be no question of them being used and that their use will not be subjected to power dynamics within any individual institution. That is why we need to deal with this in legislation and not in any other way.

I commend the Bill to the House.

I thank the Minister. It is nice to see him again. I congratulate Senator Ruane on her work on the Bill. To my embarrassment, it concerns an issue I was not well briefed on before the debate. I am grateful to her for highlighting this work and advocating for this change to create a safer and more just place for everyone. I very much welcome the debate and the Bill and I am glad to say we will support it. It is my pleasure to support Senator Ruane in getting this legislative change. I am proud to be a tiny cog in her wheel pushing this through.

When I was reading the Bill and learning about it, it stirred up a great deal of anxiety in me. We are dealing with a legacy of silence and of placing victims in what one might call purgatory. The idea of non-disclosure agreements made me think how they were used in Ireland almost by default, through a fear of speaking up, until brave victims stood up and told their truth. We have seen the consequences of secrecy and of moving abusers from one place to another, protecting low-lifes and creeps and putting more people at risk of abuse.

I listened to the webinar that Senator Ruane organised and I was sad to hear about the concept of "moving the trash" raised by Professor Julie Macfarlane. It was a new term to me. It was coined to describe the continued protection of abusers, moving them from one organisation to the next. Unfortunately, that is a familiar tale in this country, particularly in the context of the church. The contributors to the webinar related deeply upsetting experiences. We as a country should never hand abusers and employers a get-out-of-jail card.

It is outrageous that non-disclosure agreements are used against victims to reduce their rights. The law should always be actively weighted in favour of, not against, the victim. It is never in the public interest to bury abuse cases. Currently, as was noted, no legislative provisions govern NDAs or confidential clauses in settlement agreements, and the extent of the use of NDAs in Ireland in these circumstances is unknown. Let us hope we can get to the bottom of that and lift the lid on some of what is happening.

I fully agree that the public interest lies in ensuring that instances of harassment or discrimination in the workplace are not concealed. As Senator Ruane rightly said, the right of a victim to negotiate his or her settlement to protect his or her privacy is important and should always be respected. The Bill will empower the victim. It will empower individuals to have ownership of their abuse, their life experience and the choice to give back. That should always be in the victim's hands, irrespective of the next step. Abuse, in whatever form it takes, is all about the destruction of an individual's power, person and agency, and non-disclosure agreements continue to take the power away from victims.

An issue that makes me so uncomfortable relates to the fact that abuse is often classed as a trade secret and that a crime can be treated like a corporate act. Abuse and discrimination are against the law. This highlights another issue, in cases of sexual abuse and violence, when the victim is almost put on trial. Every step along the way, the distribution of justice is definitely not in the victim's favour. Thankfully, there are some ongoing reviews and reforms at the Department of Justice, so I hope that will help in that regard. A company has no business in the matter of policing abuse or of treating it as a trade secret. Some NDAs, as Senator Ruane noted, work to subvert the course of justice.

The Bill will be a global template. For a country that is still dealing with a legacy of abuse and silence, this will be one way in which it can go about getting back its good name. Let us stand with victims and support them. There is no place for the protection of abusers. I very much welcome the Bill.

I congratulate Senator Ruane and the wider Civil Engagement Group on bringing forward the Bill. It demonstrates a level of thoughtfulness and is an intervention that is honourable in itself and honours victims and survivors of sexual abuse who have, shamefully, been subjected to NDAs. That is a most appalling use of an NDA and it perpetuates the abuse in a most egregious manner. I apologise for missing Senator Ruane's contribution because it clashed with an appointment I had. I did not mean any disrespect in not being here.

As other Senators were speaking, I thought to myself that much of my prepared contribution will be explaining that I have never prepared an NDA for this use as a legal professional. I apologise for what I am going to say, therefore, because it may sound as if I am trying to distance myself. It is important in the context of the Bill to put on record that NDAs have a place and a legitimate role. The normal circumstances in which they should happen are in the context of businesses in exploratory talks with one another, where they need to exchange information and nobody should benefit from the commercial advantage of the information exchanged. In that context, an NDA is perfectly legitimate.

Similarly, in the context of normal severance packages, there can be a non-disclosure element but it will generally be couched in the terms of confidentiality and non-disparagement. Just because a confidential agreement is reached with a soon-to-be former employee, that does not mean it is necessarily sinister or that anything sinister is going on or being covered up. In my experience of the NDAs I have written, they usually occur where a relationship has broken down to such an extent that it cannot be redeemed and, therefore, the most honourable way forward is a severance package of some sort. Both parties will agree, and perhaps they will both litigate successfully or unsuccessfully, but the risks of litigating are not to anyone's benefit, so such agreements serve both the employee and the employer.

In order for such an agreement to have legal force, however, it has to have been freely entered into by both parties. There have been instances in my experience where I have held up agreements, even though there was a rush to sign and get it over with, to make people sit back and have those few days of cooling off and deciding whether this is really what they want to do and whether they in fact do not want to proceed. As a result, they will not sign out of fear and panic but rather will get advice, especially given that the employee is invariably the more vulnerable party. They must have the benefit of legal advice and the agreement has to contain exemptions for disclosure.

The sheer extent of the use of NDAs that has been outlined is shocking, although I confess I have not come across such cases. It is normal for severance agreements to have non-disparagement clauses and for an obligation of secrecy, even to the extent of the existence of the agreement in some instances, because it may set a precedent or have other consequences. It is never envisaged, however, that in an unforeseen cause of litigation, it would be used to prevent somebody from going to the Garda. That is an appalling abuse and an appalling twisting of legitimate business practices.

In the context of the employment environment, a couple of issues need to be considered.

First, the use of an NDA where there has been sexual harassment or discrimination is manifestly inappropriate and this Bill is perfect in that regard.

Let us be clear on the obligations on employers. They must create a safe place for people to work in and they must have policies and procedures in place that are effective. The complainant should first be encouraged to go to An Garda Síochána. Alongside that, the employment relationship has to be dealt with and that SI 146/2000 sets out how a grievance is to be dealt with. There is nothing to preclude a perpetrator employee that is found, on the balance of probabilities, to be guilty of sexual abuse in this context from being sacked, as this is gross misconduct. There are things like that which employers just should do. There should be no place in law for these.

What is horrific about this is that it is facilitating putting the blame in the wrong places. The employer is absorbing a blame of association and facilitation, which is in itself is wrong. If one has the misfortune to employ someone who is the perpetrator of a sexual offence, that is horribly unfortunate. It is most unfortunate, however, for the person who is the victim of that perpetrator. By using an NDA, one is somehow saying that the victim is to blame, the employer is to blame where it is the perpetrator that is to blame and that should be the only message. That is where this Bill makes that very clear and apportions the responsibility and blame to the one person by exempting the use of these agreements for which it should be a criminal offence for anybody to so use. It is shameful that any lawyer should consider and facilitate this and I am appalled by anyone who does so.

We should write to the Law Society and Bar Council to say that it should be in the code of conduct for these not to be in place. Well done and I thank the House.

I warmly welcome this Bill and I thank Senator Ruane and the Civil Engagement Group for bringing it forward. The Labour Party is very happy to support this Bill. We have spoken a great deal in recent years about believing, listening to and supporting women but that talk is hollow unless we act and legislate to fight harassment and abuse with the powers available to us as legislators. I was struck, when thinking about the Bill during the past week, about the lack of information that we have about NDAs in this country. By definition, there are no register or data available. I commend Senator Ruane on the Bill but also on promoting awareness around the use of such agreements. In some ways, we are using the phrase “non-disclosure agreements” here but to many of those who have been forced to sign them do not know what they are signing other than that it is a tool of silence so that the wrong that was initially perpetrated against them is reinforced again by ensuring that they never talk up. I commend all of the efforts in the online surveys and public events to raise that general awareness.

In essence, this Bill seeks to address that power imbalance in the worker-employer relationship. As I have just said, in many cases this is just reinforcing the initial wrong that was perpetrated against that worker. We know that this has taken place across almost every sector. I think of my own time working as a SIPTU official and of some of the cases that we came to learn about and understand where there was an attempt to silence women, in particular, because of what went on.

I am also thinking more recently of the Irish traditional music scene where there has been the harrowing testimony of women who were assaulted and discriminated against. They have not necessarily been subjected to the signing of NDAs but it is that culture of secrecy and the fear of what repercussions will follow if indeed people talk up. This is very much a workers rights’ Bill in that regard and one that we are very proud to support.

I am also struck because the UK Government announced plans to enact such a Bill in 2019 but we have yet to see any progress in that. Indeed, the Archbishop of Canterbury was urging members in the Church of England to cease the use of NDAs to cover up instances of racism within their own church hierarchy. It is only through legislation and leadership among organisations that this issue can be addressed.

I welcome what Senator Seery Kearney said in respect of lawyers and the responsibilities they have and, in particular, the Bar Council and Law Society, to influence their members as to the use of these agreements.

My final point is that I am particularly heartened to see that this is an amendment to the Employment Equality Act 1998 rather than just a stand-alone Bill because workplace harassment is an affront to employment equality. In 2019, the International Labour Organization, ILO, devoted its entire convention of that year to harassment and violence in the workplace. It identified the use of NDAs, arising from the #MeToo movement, as one of the tools used and abused by employers to try to silence people within the workplace.

Senator Ruane or possibly Senator Higgins spoke earlier about Ireland perhaps being one of the first countries to put legislation in place. That would be a very positive and proud achievement if we were to do that because we have not seen legislative action in other countries. It is something, however, that is certainly needed here and I commend and support the Bill.

On behalf of the Green Party, I commend Senator Ruane and all concerned, wholeheartedly support this legislative endeavour and unreservedly welcome it.

We will shortly hear the respondent for the Government, who happens to be a member of the Green Party. The Minister, Deputy O’Gorman, is very welcome to the Chamber.

There have been very justified, kind and positive words said by my fellow Senators about this initiative and I wish to join them in wishing this endeavour the very best. It is an example of where politics is working. We are, first, in a democratic republic with democratic institutions. Second, we have an Opposition Member being true to her role as a legislator and amending the law in a very novel, needed and urgent way, ahead of the UK and others.

We will have disagreements on other days. We had a motion last week sponsored by Senator Boylan who wished to change the fact that the housing assistance payment, HAP, should not be calculated as part of the disposable income of an applicant when the seeking of civil legal aid is being assessed. That was suddenly changed. This should feel like an empowerment of all democratic Members of this Upper House. Occasionally, we hear it said that it is all Government business going one way.

This is an example where it took great ingenuity, resilience and dedication but Senator Ruane has struck a blow for a better and fairer workplace and she deserves to be commended on that. She did so in a way which was so measured. She opened her speech to move this motion by saying that NDAs have a place. We are not dissing them in their entirety because these agreements and their very presence, in certain circumstances, can be a catalyst to settle a case in a full and final consent settlement.

I am talking about outside the realm of this particular Bill. Given our Constitution, litigation and court proceedings are held in public or in open court. It may be a year before the scheduled time that a case will be ventilated - the trial of the action. There might be a motion at an early stage for discovery. A case can settle on the eve of the discovery motion being moved because at that stage it will have blown open into the public sphere. The fear of publication or the odium that would follow it can often be a positive motivating factor in a way that legitimately buys silence in certain circumstances. The measured approach taken provides an exception to this and it is not a belt-and-braces approach. The Senator said the victim has the prerogative to say "No" and that the employee need not go along with it and may seek an exception. There may be certain circumstances or unforeseen consequences but we have that covered.

The Bill has also covered something for which I have been campaigning for years. It is to demystify all aspects of the law and make the workings and operations of the legal system, whether in contracts or affidavits, more accessible and understandable to the public. The Bill, as proposed, uses simple English. In this day and age it is not too much of an ask but I am glad it is included. It will not be caught in the Shakespearian language of centuries ago or in legalese. It is another good reason to welcome the Bill.

It is important to say that, for anyone who believes they are caught, the court will be the ultimate adjudicator. I have been in cases involving a confidentiality clause when a third party is suddenly involved. One side does not want the clause. The other side may be petrified of disclosing or would love to disclose the detail. A party may be only too happy to disclose but fears being sued in contract for breaching obligations and would, therefore, have to go to court. In ultimate circumstances the court is there to protect people and people should be aware of that.

I wish to make two observations at this early reading of the Bill. It seems there is such good statutory intent behind the Bill. It would essentially prohibit non-disclosure agreements following an incident of workplace sexual harassment or discrimination in almost all circumstances. I wonder whether a broader point is for another day. This Bill is to amend pivotal employment legislation, and that is an achievement in itself. The legislation lives and is there to be changed and reformed. In a sense, the Senator is breathing new life into the legislation and using it as a vehicle for change and for good. The concept is strong. Does some similar measure have a role to play outside the workplace where it could be covering up serious crime? That is for another day, but there are other circumstances I would be concerned about where the silence bought is of a serious criminal nature. That silence ought not to be bought at any money. No money should be able to buy that silence. I am talking about outside the workplace. This Bill is focused and pragmatic and deals with amendment to the employment legislation. I welcome that it requires the Minister to make regulations under the Act, including for a standard form of agreement.

I will finish with that. I am trying to work ahead. Creative people might come up with a different name for a non-disclosure agreement. This is so important. They have different names and styles at the moment. They are called confidentiality clauses in a contract and a non-disclosure agreement can be a separate rider. The Minister has a crucial role to play in publishing guidelines. People circumvent landlord and tenant law. They create a licence and then suddenly they are outside the ambit of the Residential Tenancies Board. I am concerned about that and I am flagging it at this early stage. It will require considerable input, co-operation and expertise from the Minister. My thanks for your indulgence, a Chathaoirligh, as I went a little over time.

Slightly. I call Senator Gavan.

The Minister is getting a long day in the Seanad but I think it is with good cause this evening. I commend our colleague, Senator Ruane, and all the Civil Engagement Group. They have consistently brought relevant and crucial Bills to the Chamber and this Bill certainly falls into that spectrum. It has the full support of the Sinn Féin Party.

As a trade union official this is a problem I often came across. We saw some horrendous practices and a great power imbalance in the workplace when we were trying to get justice for members. In some cases they simply wanted to leave because things were so horrendous. We could get a settlement but not before non-disclosure agreements were signed. That is a horrible reality of working life in a minority of workplaces but the point is that it happens. Everyone agrees it should not be happening. I commend almost every speaker so far. There seems to be consensus around the importance of this legislation. I urge the Minister to give it full support not only today but at every stage. This Bill will really make a difference for working women.

Let us be clear: non-disclosure agreements silence workers. They stop victims of sexual harassment, discrimination or bullying at work from having their voices heard and from getting justice. Using a non-disclosure agreement to prevent someone from speaking out, to prevent the truth from coming out or to cause any undue stress to workers in the workplace is wrong. The practice of using NDAs to hinder, prevent or slow injustices or to keep employees in an unjust silence must end. This Bill allows that to happen. What is sought is transparency and openness in this area for employees.

There was an excellent article in The Irish Times that featured Senator Ruane. I imagine many of us have read it. It was shocking to read that women were paid as little as €5,000 in severance after abuse and then were forever silenced by being forced to sign non-disclosure agreements.

In Britain, the Trades Union Congress said in 2019 that too many employers are using NDAs to shirk responsibility for tackling and eradicating sexual harassment, discrimination and bullying at work. Trade unions have long argued that non-disclosure agreements prevent victims of sexual harassment, discrimination or bullying at work from having their voices heard.

It is time to take action. A report from the Women and Equalities Committee in the UK Parliament revealed that NDAs are being used routinely to cover up mistreatment at work. That committee condemned the use of NDAs to cover up discrimination and sexual harassment and called on the UK Government to reset the parameters around the use of NDAs. The committee report relays 45 recommendations and concerns for the Government in Britain in respect of this issue. Unions in Britain have said that in some sectors employers insist on confidentiality clauses before discussions on virtually all settlement agreements begin. This is another issue. Workers are often forced to sign a NDA simply to get a job reference to make progress in their careers. Employers are not legally obliged to provide a reference so sometimes the only way to get one is by agreeing to a restrictive confidentiality clause. Often victims regret signing these agreements. They are often in a difficult position after years of abuse in the workforce. We can never tackle problems as deep-rooted as harassment and discrimination while employers are free to sweep them under the carpet. The solutions are clear and the good news is that the Minister has a solution available to him this evening.

This is valuable legislation. Senator Ruane has drafted it in the right area. The Employment Equality Act is exactly the place to take this action. I hope the Minister will give it full support and allow for swift passage through these Chambers. The Minister has the power to do that. There seems to be broad consensus that this Bill is one we should all get behind and one of which all of us in the Seanad could be proud.

Like colleagues, I welcome the Bill Senator Ruane has introduced. I support the principle behind it and am glad the Government is not opposing it. As has been outlined, there is a place for non-disclosure agreements. They were originally intended to cover areas involving commercial sensitivities, trade secrets and intellectual property. These must be protected. That makes sense. These agreements, however, should never be used in a way that is designed to protect the perpetrators of harassment or discrimination. I would extend these provisions beyond sexual discrimination to discrimination on the basis of race, sexual orientation and disability. Where there is an attempt to cover up something which, in normal circumstances, would not be permitted, non-disclosure agreements, NDAs, should not be entered into.

We know that simply enacting this legislation will not get rid of discrimination and harassment in the workplace and in wider society but it will at least allow us to be much more aware of the problem. We still need to have broader discussions in society and to look at training and implementing policies. It is often great for the big companies that have HR departments which can focus on these matters, but it can be a real challenge for smaller companies that do not have a HR department. An employer may only have a small number of workers and has to try to juggle everything. We still need to look at a lot more investment in training so that people can understand the challenges that exist.

This is an issue which is not only being addressed in Ireland. In the state of Victoria in Australia, a ministerial task force was established this year with the specific objective of looking at ways in which workplaces could be made safer for women. One of the areas being looked at is the area of non-disclosure agreements. In Australia, much of the learning came from the experiences of institutional abuse. There was royal commission in Australia, not dissimilar to the inquiries here, and in many cases it was found that Australian institutions got away with a great deal because they used, or misused, non-disclosure agreements. In many jurisdictions, and particularly in many of the American states, efforts are being made to introduce similar bans on non-disclosure agreements in cases of harassment and discrimination.

As colleagues said, this amending legislation is right. Our approach in all of our employment legislation must be victim-centred. We have to believe what we are being told and we have to listen to the concerns of victims. I tried to play devil's advocate with the legislation. I asked myself why an employer would try to agree an NDA and what would be the rationale behind that decision in these circumstances. The overwhelming majority of employers would be aghast at the idea of sexual discrimination or harassment. Much of it is about trying to protect the reputation of the company. That is the fear they have. They see a case arising and, although their concern and sympathy is for the victim, they realise that if they end up having to fight it, particularly in the public domain, a great risk to the reputation of the company arises.

The speed and cost of litigation are an issue. For the most part, the whole aim of litigation is to try to reach some sort of settlement. In many cases, employers take the view that, if it is easier to get something done quickly without trial by social media by coming to a settlement agreement, they will settle for that. We have got to shift that culture. We have to let employers know that, apart from the legislative perspective, it is right for them to deal with such issues in the public arena and, if cases go to court, that it will not be prohibitive for them to address the issues.

I commend the legislation, the principle of which is correct. There are some details which we can look at on Committee Stage. Non-disclosure agreements were intended for specific business purposes. They were never intended to cover up cases of harassment and discrimination. For that reason, I am glad that the Government is not opposing the Bill. I hope that we will take action and move on the principles behind the Bill as soon as possible.

Normally, when we get up to contribute to debate on a Bill, we want to add value. The preparation of this Bill, however, has been really thorough. So much work has gone into it that the only value I can really add is my support for Senator Ruane and the Civic Engagement Group. I thank Seb McAteer in Senator Ruane's office, who has put a lot of work into this. I also commend the Cathaoirleach and the Senator on the webinar. It was great to be able to discuss something in that much detail. It really set us up for this evening. That can really be seen in the contributions.

I have some experience of this issue through my circle of friends. In my friend's situation, they became so low and the situation became so toxic that they just wanted out. Others have reflected similar sentiments tonight. The webinar discussion brought the international dimension to this debate. It helped me join the dots as to the potential scale of this and to understand the global university ecosystem as it relates to the idea of passing the trash. The issue also pertains to international companies based in Ireland, including technology companies, as was mentioned by the people the Senator had on. It is also an issue in indigenous companies and in the community sector. The Senator laid that out in way that affected me powerfully this evening. It was the first sector she talked about. It is happening. The person I know to whom it happened was in a not-for-profit body. This practice is happening and we have to address it.

I am grateful that I live in the post "me too" era whenever normalised discrimination is strongly called out for what it is. Despite this, we are here again discussing shame and judgment as barriers to fully dealing with sexual harassment, harassment and discrimination except now the reputation of the organisation is taking priority instead of the protection of potential victims. We discussed this matter this evening. We need to reframe what a good corporate reputation is. We need to empower companies to understand that it is okay to value and support whistleblowers, to deal with these issues effectively and openly and to think about their long-term workplace culture before their short-term corporate reputation. They need to address the issues head on. They must take responsibility for what has happened and deal with it in an action-based way within their organisations instead of literally filing it away under the corporate carpet.

There are two wrongs here and neither belong to the victim. Both the perpetrator and the organisation that believes that anything that happens within it has no relevance outside are in the wrong. The victim has done nothing wrong, yet he or she can be further disempowered. If we ask victims seeking justice in these situations why they are doing so, they say that is because they do not want it to happen to somebody else. That these agreements would take that option away is really disturbing.

I welcome the thought that has gone into the Bill. The Senator said that is about the victims' choice and that it should be up to them whether they want to protect their confidentiality. I also recognise the importance of NDAs. I came across them a lot in my old industry, marketing. If one is taking on an agency, one obviously has to ensure that information about marketing and trade secrets is protected. I get that but companies should only be able to use these agreements, not abuse them, as the Senator has so effectively outlined.

This legislation relates to the Employment Equality Acts and proposes to amend them under the nine grounds of gender, civil status, family status, sexual orientation, religion, age, disability, race and membership of the Traveller community. In the programme for Government we commit to amending gender to ensure gender identity is protected and examining the introduction of a new ground of discrimination based on socioeconomic disadvantaged status.

A person with a disability is still four and a half times more likely to be unemployed than the general population. A black person is six times more likely to be unemployed and a Traveller is 13 times more likely to be unemployed. We have so much work to do in equality of opportunity. I commend the Irish Human Rights and Equality Commission on its work in this area. Most important, I am here to lend support to the work that Senator Ruane and the Civil Engagement Group have done. I am pleased it is not being opposed. I thank them for introducing it into the narrative and putting in on the agenda.

I commend my good friend and colleague, Senator Ruane, and her parliamentary advisor, Seb McAteer, on the incredible work they have done on this Bill. There is no doubt that the Senator's dedication to shining a light on this troubling and highly sensitive areas has been inspiring.

I congratulate her on the launch of this Bill with the amazing panel of experts who have long advocated against NDA abuse. I will comment on one expert who spoke, Professor Julie Macfarlane, distinguished professor in the University of Windsor in Ontario. She personally experienced the impact of NDAs when she discovered a secret settlement made to protect her university and former colleague after his termination for harassment and intimidation of students. Revealing the true circumstances behind this departure led to her being successfully sued for defamation as her employer hid behind the NDA. It is shocking to think this is going on in universities. Can Senators imagine if it happened to their own child and they were silenced and not able to speak about it? I know from working in the area of therapy about the impact on mental health of not being able to speak about something like that. It is almost blaming the person for what has happened.

I am happy to support this. I will not speak on the technical side of the Bill. Senators Ruane and Higgins have done that. They have clearly and accurately laid out the intention and context of the Bill. I will speak about the importance and significance of the Bill in empowering victims in Irish society. Silence has fallen on the Irish people far too many times throughout history. We have covered up some horrific truths and buried them with shame so I am delighted to see this Bill and that it is not being opposed by the Government.

How could there be a legal basis for covering up a crime? It is shocking, unethical and immoral. It is not of benefit to the victim or anybody who comes in contact with the perpetrator if an employer negotiates an NDA to hide instances of abuse or bullying and then provides a glowing reference so the person is free to move on. They are desperately failing in their duty of care. We can never have a society where we strive to bring about justice for victims only in return for silence. That is not justice.

I am delighted the Minister is supporting this Bill to value the importance of protecting victims at all stages of abuse, not only to speak out but to move to a time where protecting the perpetrators is no longer an option. NDAs serve to protect upper level executives and managers who abuse their power and do nothing to help victims. Where a potential offence has been committed and somebody as a result is dealing with trauma and injury, it is horrific that we have a tool enshrined in law that ensures this crime will not be reported. We have given a legal basis to silence victims in the past and protect perpetrators and their employers. That must end.

This Bill is important for society in general and especially for women. It is particularly poignant in the light of the recent conversation on the mother and baby homes waivers, which is yet another horrific example of women being able to access justice where in return they never speak of the injustices they have experienced. The Bill signifies an end to this silence and the conditional justice women have been tethered to for too long. It breaks the traumatic silence that has harmed many victims. I am grateful to be part of the Civil Engagement Group and a friend of Senator Ruane, proud to be here today and appreciative of the fact the Government is supporting this.

It is my great pleasure to welcome the Minister for Children, Equality, Disability, Integration and Youth, Deputy O'Gorman, to the House and invite him to speak.

Has Senator Flynn arrived? We can have Senator Flynn later and the Minister now. It does not matter which way we do this. We will let Senator Flynn draw her breath or does she want to speak immediately?

I thank the Leas-Chathaoirleach and I thank the Minister for supporting Senator Ruane's Bill. Sorry, I am after running in.

There is no rush.

I am proud to co-sponsor this important Bill. I cannot speak because I am out of breath after running in.

The Minister can come in and the Senator can come back. Is that okay?

Yes. I call the Minister and we will come back to the Senator.

Sexual harassment and discrimination have absolutely no place in any workplace and employers should be open in addressing these challenges when they occur. I thank Senator Ruane, her staff and the co-sponsors of the Bill for their work in bringing forward this important legislation. The objectives of the Bill are laudable and, accordingly, the Government will not oppose it.

No person should feel they have to hide their experiences, and no one should ever be put under pressure to conceal harassment or discrimination to protect an individual, an institution or a company reputation. Victims of harassment often have an incredibly difficult time coming forward and the responsibility of an employer is to recognise where there is harassment or discrimination in their workplace and protect employees by taking steps to prevent or address this.

Senator Ruane's Bill addresses the use of NDAs following a harassment or discrimination suit. It is fair to say not much is known about the extent of this issue in Ireland. Senator Seery Kearney said that in her experience in employment law she had not come across the practice. Senator Sherlock likewise said she had not come across specific examples. We are aware of high-profile international examples, which the sponsors of the Bill have cited as an influence on their work on the issue, of the use of non-disclosure agreements to conceal significant and long-running instances of sexual harassment and discrimination. However, there is no research on the point in this jurisdiction. That is why I was particularly interested to hear of the instances Senator Ruane cited of people she had engaged with. Senator Gavan cited examples he was aware of through his trade union work. I hope to engage further with Senator Ruane to get detail about these real-life instances so we can understand how these NDAs are being used. It is my intention to commission a piece of research led by my Department into this phenomenon in Ireland and the circumstances in which NDAs are used in this manner.

There are a few issues with the drafting of the Bill, which is not to take away from it as a piece of work. The Employment Equality Acts currently do not consider the use of NDAs in the context of sexual harassment and discrimination.

This Bill will obviously introduce a new concept to legislation.

While we may wish to prevent the use of non-disclosure agreements to conceal instances of harassment or discrimination, we do not want to fetter the ability of an individual employee to negotiate his or her own settlement. Non-disclosure agreements have a place within general employment law, a point to which a number of Senators referred.

We did have a concern that some of the Bill's provisions would appear to make non-disclosure agreements unworkable from a practical point of view. Accordingly, we would require some careful rewording of certain provisions to ensure a balance is found which does not impinge on the individual employee.

There are also no other legislative provisions in place regarding the use of non-disclosure agreements in employment. I understand they are commonly used for the protection of business confidentiality in settlement cases. It is important to avoid unintended or far-reaching consequences to non-disclosure agreements in general arising from the specific purposes Senator Ruane is seeking to deal with in this Bill.

There is some degree of an information gap in this area. However, there are also some real-life experiences of the use of non-disclosure agreements in the pernicious way as has been described. I look forward to the research the Department will do to gather those real-life experiences and using it to shape appropriate legislation.

The Bill proposes to amend the Employment Equality Acts 1998 to 2015, which prohibit discrimination, harassment and sexual harassment under the nine grounds of discrimination in employment, including vocational training and work experience. The Employment Equality Acts cover a range of aspects of employment, including equal pay, access to employment, work experience, terms and conditions of employment and dismissal. Under the Acts, where an employee feels he or she has been discriminated against under the legislation, that employee can make a complaint to the Workplace Relations Commission. This legislation provides important protections to employees and makes a clear statement to employers that they must provide a workplace free from harassment, sexual harassment and discrimination.

We know there are ongoing instances of discrimination. The Workplace Relations Commission annual report for 2020 shows that in the reporting period, 939 employment equality complaint referrals were received, citing 1,260 specific grounds. Of these complaints, 290 cited the disability ground, 278 cited the gender ground, 210 cited race and 206 cited age as at least one ground for the complaint. These statistics show us the range of discrimination which may be taking place. I am heartened by fact complaints are being made, however, as it shows employees are aware they have these protections and have recourse where they feel discrimination has occurred.

It is important our equality legislation be agile and responsive to the changing nature of the workplace. As we have seen from the Covid-19 pandemic, the workplace has come to mean many different things. It can even be as basic as your own kitchen table. The programme for Government recognises the need to ensure our equality legislation provides the necessary support to all employees. It contains two important commitments for possible amendment of the legislation.

The first commitment relates to the gender ground under the legislation. It commits to amending the gender ground in equality legislation to ensure someone discriminated against on the basis of gender identity is able to avail of this legislation. Everyone is entitled to live in their true identity and to be who they are inside and outside of work. The Government is aiming to provide certainty to all people that the protections of the equality Acts apply to them. Work to examine this issue is under way in line with the commitment to review the Employment Equality and Equal Status Acts to ensure transgender, non-conforming and intersex people have explicit protection within the equality grounds in the national LGBTI+ inclusion strategy, the oversight committee for which I chair.

The second commitment relates to the examination of the introduction of a new ground of discrimination based on socioeconomic disadvantaged status to the Employment Equality and Equal Status Acts. This is an important commitment and reflects the growing understanding that socioeconomic status can have a wide-ranging impact on people's lives.

These commitments are central to the focus on the Equality Acts in my Department. Any changes to the legislation, however, require careful consideration and the development of detailed proposals. I anticipate some form of public consultation on the inclusion of socioeconomic status as a ground for discrimination will take place in the coming months to understand the experiences of those who face this discrimination. This work will inform any plans for legislative proposals.

I hope to include any examination of the issue we are discussing today in the work on the programme for Government commitments. I request the sponsors of this Bill to allow time to conduct any research. This will ensure we are properly identifying and addressing this issue in a way that takes account of the policy good while not preventing an individual employee from making his or her own choices.

Equality is an ideal we are striving for but it is one which needs protection. The Equality Acts provide that protection and, as I have noted, they need to be responsive to the changing world. The programme for Government commitments reflect the seriousness with which the Government regards that legislation. I am happy the Oireachtas is supporting us in identifying issues which may need to be addressed. Once again, I thank the sponsors of this Bill for their work and for highlighting this particular concern.

As Senator Martin said earlier, it is measured legislation. My Department would like to undertake discrete research on the real-life use of non-disclosure agreements in the way the Bill seeks to outlaw. I have outlined several concerns about some elements of the wording. However, I do not set out those small caveats in a negative way. I am taken with the particularly pernicious practice the Bill seeks to outlaw. I look forward to working with Senator Ruane and her staff in bringing out a strong legislative solution.

I thank the Minister for his positive engagement with this House as usual. To be fair to the list, I will call Senator Flynn now.

I apologise for the earlier episode. Today, we are part of history. I thank Senator Ruane and her office for all the hard work she has done on this Bill to date. Before I ever had the opportunity to come to this House, Senator Ruane has been a great role model to young women like myself. I thank her and her office from the bottom of my heart for bringing this legislation forward today. It is an issue that is not spoken about much. I am proud to be a co-sponsor of this Bill.

This Bill would right serious wrongs in our society. Women in Ireland are being forced to sign non-disclosure agreements around abuse, bullying and discrimination they face in employment in order to receive severance payments. Women in this position are being victimised twice: first, through the abuse they face while in the workplace and, later, when their power to tell their story is taken from them. The person who engaged in the abuse or discrimination is protected by this enforced secrecy. In Irish society, we are so used to cover-ups and moving people along.

Under Senator Ruane's Bill, non-disclosure agreement requests by the victim of harassment or abuse to protect their confidentiality would still be legally enforceable. It is important that women who want that protection can still have it. No other non-disclosure agreements following cases of workplace sexual harassment or discrimination would be permitted. Senator Ruane learned that non-disclosure agreements are not uncommon. Non-disclosure agreements to protect sensitive commercial or legal information would not be affected by this legislation.

When we are talking about cases of sexual harassment, non-disclosure agreements work to silence victims. Abusers may then go on from job to job without being held accountable for their actions.

Through the use of NDAs, employers are often relieved of their responsibility to hold people accountable for their actions.

Senator Ruane recently held a very powerful launch for the Bill which featured the first woman to break an NDA signed with Harvey Weinstein, a film producer who is now a convicted sex offender, as well as other women who are actively challenging the use of confidentiality clauses in the UK and the United States. We heard about the additional trauma this silence imposed on victims of sexual harassment and discrimination, women who have already experienced trauma. We have heard about the human cost of this enforced silence to women and other victims of abuse. This should not be the case. The Bill respects and supports women and other victims of abuse, bullying and discrimination by giving them back their voice. Speakers at the launch told those in attendance that this will be Ireland's chance to be a world leader in this area. Now it is our opportunity not to take a step in the right direction, but to take a leap in the right direction, guided by Senator Ruane and other Oireachtas Members. It is very welcome to see the support for taking a step in the right direction in the context of employment, especially for women from different backgrounds, as Senator Ruane rightly said in her opening remarks.

While the Minister is present, I will highlight the importance of addressing the gender pay gap, which the House discussed today, in the context of employment and equality in employment. A cohort of people are being left out and face discrimination in terms of not even being able to get jobs in workplaces, so there is a need to consider bringing in quotas going forward. It is a conversation for another day in the context of ethnic minority groups because there are not many people from ethnic minority groups in employment in the mainstream market. I wish to point that out again. That is work that I and the Civil Engagement Group will be undertaking. I thank the Minister for supporting this very important Bill.

I will be brief. I thank the Leas-Chathaoirleach for allowing me in even though I was a little late arriving. As Senator McGreehan said on behalf of our side of the House, we will not be opposing the Bill. Indeed, we support it. Like other Senators, I compliment Senator Ruane, who has done a lot of work on the Bill. Of course, Senators Black, Flynn and Higgins have given significant support to it.

The Bill proposes the insertion of a new section into the Employment Equality Act 1998 to restrict the use of non-disclosure agreements in the context of workplace sexual harassment or discrimination. Of course, this is an issue that needs to be addressed. All Members accept that. We have the responsibility, as legislators, to stamp out that type of thing. The Minister probably clarified a few issues in his contribution. Basically, the Bill would prohibit non-disclosure agreements following incidents of workplace sexual harassment or discrimination in almost all circumstances. The only exceptions to the rule would be when the person who experienced harassment or discrimination requests a non-disclosure agreement to protect his or her confidentiality, or what is known as a victim's exception to a general prohibition rule. The Employment Equality Acts 1998 to 2015 currently do not consider the use of NDAs in the context of sexual harassment and discrimination, so the Bill will introduce a new concept to the legislation.

NDAs have a legitimate basis in the context of a company using them to protect commercial interests and confidentiality. Although it is undesirable for them to be used to cover up discriminatory or illegal behaviour, if they are severely restricted, that may have the effect of limiting the possibility for employees to obtain a settlement without having to take additional and potentially costly action, such as at the Workplace Relations Commission or through the courts. No current data exist on the use of NDAs for that purpose but they are frequently used for commercial purposes. There are no legislative proposals governing NDAs, confidentiality clauses and settlement agreements, but there is increased sensitivity to and scrutiny of the use of NDAs and that is why it is important that we have this discussion on the Bill brought forward by Senator Ruane and her colleagues. The current position is that for a settlement agreement to be enforceable it must be freely entered into without undue pressure or influence, the signatory must have the benefit of independent legal advice and exceptions to confidentiality should be made to allow for a range of disclosures, including to appropriate regulatory or statutory bodies or law enforcement agencies.

Those are my observations. I fully support what the Senator is doing. It is important to stamp out this practice. There is no doubt that women suffer from it more than men, but some men suffer as well. What the Senator has done and is trying to do is important. It is an important debate and I welcome what she is trying to do. She might have some answers to the points I raised and, if so, good and well. I make the points only to set out the current situation. I fully support anything we can do to improve the situation and I genuinely believe that is what Senator Ruane is trying to do.

I thank all present for their attendance and very positive contributions. It is a real sign that we are learning from the mistakes we have been speaking about for years in terms of people being silenced, victims not being empowered and cover-ups for perpetrators for whatever reason, whether it is reputation or because a culture has crept in. I will try to address some of the points made.

Senator McGreehan spoke about how the law should always weigh in favour of the victim. That is very true but, unfortunately, it is not what has happened in Ireland and elsewhere. Many people do not even get to access the law in any shape or form because non-disclosure agreements are being offered even at the point of making a complaint, before any internal investigation to actually find a resolution or who is at fault. NDAs are sometimes introduced at the earliest possible point of a complaint.

I was delighted to hear Senators Sherlock and Gavan refer to unions because the unions play such an important role on this issue because it is a workers' rights issue but, unfortunately, a culture has crept in. While carrying out our research we encountered instances where the union representative suggested a non-disclosure agreement might be the right course of action so that the person can move on. That shows how much it has crept into the psyche in terms of it being normal in the context of settlements. It goes back to many of the comments regarding severance and settlements and how there may be a need for NDAs in settlements. This is not the case. Settlements can be made without non-disclosure agreements. There may be a need for a confidentiality clause regarding how much was paid and such logistics but definitely not with regard to covering up a crime. There is no legislative framework in the Bill with regard to the use of NDAs but there has to be legislation that addresses anything being done to cover up a crime. The very principle of this is that we need to make sure we create legislation that does not facilitate the covering up of crime.

I welcome the significant stakeholder support we have had on this issue, such as from the unions. The more we talk about this issue, the more we will empower unions and various representatives in different sectors who want to see a change to this to have a voice and a platform to bring that about. We are beginning to consider the issue and call it out as being wrong.

Senator Seery Kearney spoke about who should absorb blame. As a victim of sexual assault outside the workplace, it is my belief that there is something collective when people share a history of trauma, in whatever way that may be. In the months leading up to this debate, I, as a person who has experienced trauma, have had to read many instances of the use of NDAs and many case studies and I feel connected to that. No Member of the House has suggested that any person who has had to sign an NDA should absorb the blame. I think this Chamber has sent a good message today that those who had to sign an NDA should not absorb that blame but, rather, quite rightly, it is the perpetrator who should absorb it.

It showed the power of an industry to weed out perpetrators instead of protecting their reputation so that there is not an incident in a newspaper, court hearing or on social media. I would rather be known as the person who risked getting rid of someone who had tenure in a university and risk the lawsuit for sacking him. I would want the reputation of standing up to that. We should absorb the blame.

Ifeoma Ozoma co-sponsored a Bill in California. She is an amazing woman who took a case against Pinterest about the use of a non-disclosure agreement. When we talk about the international context, those big tech companies that she is challenging are based here and contributions today acknowledged that. They have that culture of the misuse of non-disclosure agreements.

Senator Malcolm Byrne mentioned going further than just sexual harassment. The Bill goes further than that and all of the nine grounds of discrimination would be captured within it. I am using sexual harassment and discrimination to make it understandable and accessible to the people who hear us talk about it.

Senator Currie spoke about whistleblowers and workplace culture and how she knows friends who have signed this and come to it from that personal point of view. We have never carried out research so I welcome research. People are afraid to speak about it. I had to ring three people today who know that they have inspired this legislation over the last few years to tell them not to panic if, at any stage, it looks like I am going to give it away. I will not because it is traumatising. They feel that fear. We have started on this research and have a small sample. We have to find a way to carry out that research adequately because behind that silence is widespread use of non-disclosure agreements. We need to figure out how to break past that silence and fear. One woman said that she cannot speak and asked what if she loses her mortgage or is sued, since she could not afford to pay her bills. Those are people's real fears.

Senator Eugene Murphy mentioned that men are affected too. Many men have contacted us. There was a pattern in the sample that contacted us. They were men who were bullied in the workplace after highlighting and calling out a discrepancy in a financial issue or such and then later had to sign a non-disclosure agreement.

Senator Flynn mentioned that people are being victimised two, three, four or five times.

I thank Senator Ruane for her summation.

Question put and agreed to.

When is it proposed to take Committee Stage?

Is that agreed? Agreed.

Committee Stage ordered for Monday, 21 June 2021.

I offer my heartiest congratulations on behalf of all of us to Senator Ruane on the passage of Second Stage of the Bill. When is it proposed to sit again?

Tomorrow at 9 a.m. in the Convention Centre Dublin.

The Seanad adjourned at 8.35 p.m. until 9 a.m. on Tuesday, 15 June 2021.