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Seanad Éireann díospóireacht -
Wednesday, 6 Jul 2022

Vol. 287 No. 2

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

The discussion is to adjourn after one hour, if not previously concluded. I welcome the Minister, Deputy O'Gorman, back to the House.

On a point of order, I do not think this should be done after an hour. It is to conclude, regardless, after one hour.

Not according to the Order of Business about which I have been informed.

We will have to move quickly because it is agreed to conclude.

The discussion is to adjourn after one hour, if not previously concluded. It is not a target or a maximum.

SECTION 1
Question proposed: "That section 1 stand part of the Bill."

I thank Senator Ruane for bringing forward this Bill, which highlights the importance of transparency in addressing discrimination and ensuring cases of harassment and sexual harassment do not remain concealed, thereby protecting and providing cover to those who commit these acts. The Government indicated on Second Stage it would not oppose this Bill but would instead conduct its own research in to the prevalence of the use of non-disclosure agreements, NDAs, in cases such as this.

In March of this year, officials in my Department published a report, The prevalence and use of Non-Disclosure Agreements (NDAs) in discrimination and sexual harassment disputes. This research highlighted that NDAs are commonly used in a range of contexts within Ireland and other jurisdictions, but it also noticed there were significant data gaps. The inherent secrecy of these contracts presents challenges in rectifying this. NDAs are often signed in contexts where there is a significant power imbalance between the signatories.

The report notes there appears to be a consensus among all stakeholders that some change is needed, with differing perspectives on the optimum legislative response to the challenge presented by the use of NDAs. While some commentators and practitioners favour the effective prohibition of NDAs in cases of sexual harassment or discrimination, others favour their regulation but still see an important role for them in the ethical resolution of disputes.

The main recommendation from the report is that prevention is key. Human resource practices should encourage reporting and foster a workplace culture that does not tolerate sexual harassment or discrimination. In cases in which a settlement following a dispute includes an NDA, however, employers should ensure best practice is followed. I have considered the outcomes of this research and I now intend to address the findings as part of the ongoing review of the equality Acts by my officials. The process of undertaking that review was valuable. I thank my officials for their work in helping to undertake and devise the review, which is already being looked at as quite significant work.

In the context of that ongoing work on the equality Acts, last year I launched the public consultation process to inform the review of the equality Acts to examine the functioning of the Acts and their effectiveness in combating discrimination and promoting equality. My Department was pleased to receive an extensive response to the consultation, and the submissions are currently being analysed. It is intended that legislative proposals arising from the review will be brought forward at the end of this year, including addressing the use of non-disclosure agreements in discrimination and harassment cases.

Notwithstanding the intention of Government to bring forward our own proposals, I will indicate amendments to this legislation which the Government intends to bring forward on Report Stage. In this section, the substitution or deletion of definitions of "relevant employee", "relevant individual" and "non-disclosure agreement" may be required to provide greater legal clarity and certainty.

I do not intend to speak on every single section, when it is not required. It is important to pick up on some of the points the Minister has just made. I thank him and his officials. Sometimes when you bring legislation and a Department says it will look at it or a Minister says he or she will look at it. you hope and want to believe that will happen. I have to say that the Minister, Deputy O'Gorman, and his officials acted very swiftly on carrying out that research, which has been very beneficial, not only to me in the progression of this Bill and our opening up the area of understanding NDAs in Ireland but also as part of a global message. I informed the Minister a few weeks ago that there are now some Canadian provinces that have introduced the Irish legislation before us. We are having an impact with this very important conversation we are having.

The initial research that has been done on non-disclosure agreements and their use of Ireland is just the beginning of being able to unearth the level to which NDAs are used here in Ireland. What also comes out through our own research that ran in parallel with the Minister's, because we continued meeting with people who are affected by NDAs, is that hybrids of NDAs have become prevalent. There are some classic NDAs used in instances of business and trades which should be protected, but what has now happened is that we see severance agreements that look plain and simple on the surface, but very significant NDA clauses are contained within other such types of agreements, such as compromise and confidentiality agreements. The clauses are not very obvious to the eye as a classic NDA.

I know the Minister intends to bring his own policies forward on this, which I hope we can also inform. I thank the Minister and I am open to working with officials on all the sections between now and Report Stage, rather than waiting to come back to Report Stage, whenever that happens. If the Minister gets out there first in terms of bringing his own policies and, potentially, his own legislation and my legislation were not needed, that would also be welcome.

Question put and agreed to.
SECTION 2
Question proposed: "That section 2 stand part of the Bill."

While I support the principles behind the Bill, as it is currently drafted, it may not capture the broad nature and use of non-disclosure agreements that has come to light in the research carried out by my Department. The proposals, as drafted, may limit the ability of an employee to negotiate a settlement where sexual harassment or discrimination has occurred. For this reason, I will bring forward amendments proposing to amend or substitute sections 1 to 5. I will also bring forward amendments to section 14B(6), as inserted by section 2 of the Bill, for the substitution or deletion of the subsection as the nature of "an offence" under the provisions of the Bill requires further elaboration. I also intend to amend section 14B(8), as inserted by section 2, because legal or practical issues may arise from the provisions under this subsection. I also intend to bring amendments to section 14B(9), (10) and (11), as inserted by section 2, because these subsections may require technical amendments flowing from other amendments proposed under this section. I also propose the amendment or deletion of section 14B(12), as inserted by section 2, because this issue may be better dealt with under section 1.

I am happy enough to continue to engage on those amendments between now and Report Stage.

Question put and agreed to.

I welcome to the Public Gallery a number of guests of Senator Fitzpatrick's who are in for the evening: Mr. Alan Smullen, Ms Catherine Fox, Mr. Andrew Fox, Mr. Barry Reddin, Ms Bla Flanagan and Mr. Sean Cody. They are all very welcome to Leinster House and I hope they have a nice evening ahead of them. I am delighted to see people participating in democracy and watching us, quite efficiently, I hope, get through the Bill we are dealing with. We have dealt with section 2.

SECTION 3
Question proposed: "That section 3 stand part of the Bill."

I will propose the deletion of section 3(2), as the commencements of any new provisions need to be considered in the context of operational or other considerations.

That was a simple enough suggestion, which is great. I could be more efficient in passing the Bill by shutting up and sitting down but believe-----

We are not finishing it today. We are back next week for Report Stage.

The Acting Chairperson knows what I mean.

It could be a long time between now and then for me. I note how important this legislation is. It intersects with some of the other areas on which we work, such as protected disclosures and burials. There are so many areas on which this Bill impacts. Over the past year, the matter has come to light more and more and the media are picking up on it. Older women have travelled the country to meet me on this. One woman in her 60s or 70s travelled here on a train to hand-deliver NDAs to me out of fear of the consequences of sending them in the post. I had to meet women in town so they could hand them over. That is the type of fear people are living with. With regard to obtaining data, there are gaps because of fear. We all understand that, in some cases, the victims of abuse or sexual harassment may sign a given document in a desire to see an end to their circumstances, but we know their position changes. We know from the campaigns I am involved in on this issue here and in the UK, Australia and Canada that over time people regret signing NDAs because they heal within themselves and conclude they want accountability regarding how they were treated. It is a question of being able to set a legislative framework and policy to give voice to that, not only for the protection of the individual who has signed the NDA but also third parties who may be affected by the abuser, on whom there is no actual data because an NDA has been signed.

We have discovered the use of NDAs in the private sector. This has been more difficult for me to get to grips with because I cannot make a freedom of information request. There is information that I cannot obtain. We have tried to use other ways to get companies on board. We have been told a number of companies, including insurance companies, have used NDAs in a very aggressive manner in respect of a number of women, but often the same individual, within their organisations over a period of ten or 20 years. There is nothing I can do to reach into the private sector. Legislation is so important because it will apply across the board, not just to a particular sector. That is why legislation, rather than policy, is so important in this area. It will not impact very legitimate NDAs. It will relate only to a crime being covered up. One of the main points concerns the confidentiality of the victim in some cases. That is where we really need to have conversations. If confidentiality should apply to the victim, it does not mean it should apply to the perpetrator, nor does it mean the perpetrator should not be accountable so as to protect the anonymity of the victim. I look forward to seeing what the Minister's office and Department will come forward with. I hope that between now and then we can continue to tease out what good legislative practice in this area would be.

I will be very brief. I am very glad to see this Bill passing Committee Stage with support. I probably have some concerns. I realise the Minister proposes to introduce his own legislation. This is such strong legislation. With regard to some of the language mentioned on negotiations, it is important that, given the power imbalance in many of these situations, we do not end up with anything whereby it may be perceived that persons can negotiate or waive their right to speak in relation to an incident. That is important because the NDAs are damaging not only to the individuals who are pressured into signing or forced to sign them but also to institutions and other persons within institutions, and that is why there is a wider concern. Again, individual negotiations should not leave us in a situation where those who have perpetrated sexual harassment are granted anonymity. That is not the intent but we need to be vigilant about what comes next.

Regarding timeliness, we are being overtaken, as Senator Ruane has described. Other jurisdictions are copying this legislation and passing it. Senator Ruane and I have been asked to speak at international conferences of legislators who are seeking to copy this legislation. We have a really important issue that has been led in this House by Senator Ruane. I applaud the Minister again for taking the time to do the review and research and push it forward. Let us retain that momentum. It is crucial that it be a matter of legislation, not policy, and that there is no discretion regarding whether it should be used. Let us keep up the momentum and see early progress. Let us have Ireland lead in this really important area. As Senator Ruane said, it is part of a wider shift towards transparency away from secrecy. It is important and could be an international marker for us all.

We are all doing our best to get it through these Houses as fast as we can.

Question put and agreed to.
Title agreed to.
Bill reported without amendment.

When is it proposed to take Report Stage?

Report Stage ordered for Tuesday, 12 July 2022.
Cuireadh an Seanad ar athló ar 9.17 p.m. go dtí 9.30 a.m., Déardaoin, an 7 Iúil 2022.
The Seanad adjourned at 9.17 p.m. until 9.30 a.m. on Thursday, 7 July 2022.
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