When is it proposed to take Fifth Stage?
Employment Equality (Amendment) (Non-Disclosure Agreements) Bill 2021: Report and Final Stages [Private Members]
Bill received for final consideration.
Now.
Is that agreed? Agreed.
Question proposed: "That the Bill do now pass."
I thank Senators for their continued work on bringing forward this legislation, which will address the issue of the misuse of non-disclosure agreements in employment to cover up instances of harassment, discrimination and abuse. I reiterate that sexual harassment and discrimination have no place in the workplace. Employers should be open to addressing these challenges when they occur.
The Government will not oppose this Bill today. It supports the general principles behind the Private Member's Bill. As the Bill is currently drafted, it may not capture in entirety the broad nature and use of non-disclosure agreements, NDAs. As I have previously indicated, I intend to address the issue of non-disclosure agreements in cases of discrimination and harassment through legislation arising from the review of the equality Acts. This work is now well advanced and the heads of Bill will hopefully be brought to Government by the end of this year.
The Government's proposals on this issue will be informed by the research carried out by my Department and published last year on the prevalence and use of non-disclosure agreements in discrimination and sexual harassment disputes. This research highlighted that NDAs are commonly used in a range of contexts in Ireland and that the inherent secrecy of these contracts presents challenges in rectifying the misuse of NDAs. The report notes that there would appear to be consensus among all stakeholders that some change is needed, with different perspectives on the optimum legislative response to the challenges 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. However, in cases in which a settlement following a dispute includes an NDA, employers should ensure that best practice is followed.
No one should ever feel forced or obligated to hide their experiences and no one should ever be put under pressure to conceal harassment or discrimination to protect the reputation of an individual, institution or company. Employers have a responsibility to recognise where there is harassment or discrimination in their workplace and to protect their employees by taking steps to prevent or address this when it occurs.
I greatly appreciate the work and commitment on this issue by the sponsoring Senators and the initiatives taken to improve and strengthen our employment equality legislation in Ireland. I thank Senators for all the work they have done on this Bill in an important equality area.
I acknowledge that Prince Edward Island in Canada enacted legislation which is largely modelled on Senator Ruane's Bill. I particularly commend the Senator for the international leadership she is showing on this issue.
I assure Senators of my commitment to addressing this issue, just as I am committed to making sure our equality legislation is responsive to changes that are happening in society and is updated accordingly as issues are identified. Today's debate highlights an important area of employment equality which requires updating and I remain committed to ensuring that we address these issues raised today through our equality review legislation. I thank the Cathaoirleach and Senator Ruane for her work in this area.
It is never an easy task as an Independent in opposition to get legislation all the way through the Houses. Even though it is not yet fully realised with regard to its implementation, this Bill is extremely significant in showing what can be done in the Seanad when working with Departments and finding common ground on things we need to change. I thank the Minister for that. When this issue was first raised, he and his officials began to engage quickly and carried out their own research, which thankfully backed up what I had been saying. Obviously, non-disclosure agreements, by their nature, are secret. Carrying out research to actually understand NDAs is a difficult task. I congratulate the Minister's office and officials for managing to take that research as far as we possibly could, given the climate of secrecy.
What I am also happy about is that, in talking to the Minister and hearing his contribution today, my Bill does not go far enough in some situations in incorporating the idea of NDAs being pre-emptive, for example, in contracts. It would be great, as we move forward, to be able to continue to tease out some of those issues to make sure the full extent of NDAs is captured in the Minister's legislation.
I acknowledge the work of Professor Julie Macfarlane. She was a law professor in University College Cork once upon a time. She is in Canada now and heads up a law school there. She was not subject to an NDA but she became involved in an NDA because, as an employer, she was expected to give a reference for somebody who she knew was being moved around because of sexual harassment. By breaking that and refusing to be complicit in it, her own work began in this area from a legal perspective. She and Seb McAteer, who was in my office at the time, were key in drafting the legislation as it currently stands. It is getting international recognition, as the Minister said, for being the strongest legislation in this area to date.
A number of states in the United States are bringing forward legislation. There are Canadian provinces and Australian provinces. The UK recently passed an amendment to a piece of legislation that directly looks at universities. Thankfully ours is much wider than that and covers all employment law regardless of the sector because it is very cross-cutting and goes into every sector. It is not only a sectoral issue it is actually becoming a standard practice in the heads of legal professionals who just automatically write this stuff into contracts, severance agreements, non-disparagement agreements, and just present this as the done thing to do. Regardless of what sectors they show up in a massive culture change is needed within the legal profession itself. This conversation has gone a long way to being able to raise the awareness of their impact on many individuals in terms of the people who signed them here in Ireland.
I also acknowledge the work of Robert Somerville in my office, who has been with me for the past two years, to take it to the point we are at now. We had a very successful event last night where we flew Zelda Perkins over to have a conversation. She was the woman who broke the Harvey Weinstein NDA. Obviously that is a very extreme case but her work exploded the whole area of how often NDAs are used. It is not always as extreme as that but the work of Zelda Perkins and Professor Julie Macfarlane has been to highlight the systemic use of NDAs for a whole spectrum of issues and severity. Again, I thank my own office staff and Brian O'Flynn for helping me to continue to put a bit of energy behind this because when work takes a few years and other stuff drags you in different directions you need to make sure there are people who continue the work behind the scenes; I am very grateful for that.
I will finish with a few quotes. Obviously because of the secret nature of NDAs a lot of the testimony I have is anonymous so I wanted to finish by reminding everyone in this room why NDAs are so important and to give those people some element of a voice in this piece of legislation today. These are direct quotes from or about people in Ireland who have been impacted by NDAs:
Coming forward should not be as painful and should not carry as much risk for someone as it currently does.
It is unacceptable that workers would be forced to stay silent after being subject to this atrocious behaviour, especially when mandatory silence only serves to perpetuate the culture of secrecy that allows abusers to continue tormenting and abusing other workers.
NDAs are ubiquitous , particularly in the US and in places where US companies operate. Though they are not a uniquely American thing, the Catholic Church and many other institutions have used NDAs for years.
It puts you in a position where you cannot be honest in your personal relationships and you cannot be honest in your professional relationships. It is an extremely lonely, isolating place to be.
Who can you talk to about what happened to you? Nobody, they said. Well, lawyers. Not your spouse or your family? No. Would a therapist fall under this? I am not even sure.
NDAs can make it harder for us to learn about and therefore prevent actual harassment that is going to physically harm individuals, psychologically harm individuals. There is a psychological harm that results from agreeing to not tell your story, the story of your own life, and that psychological harm is not one that you would appreciate, probably, when you first signed that contract.
I would say that for women signing settlements and then signing an NDA, not only are they signing to be quiet, which is what the general public thinks in the majority of the cases, you are signing to never work in your chosen profession ever again.
She said dealing with the fallout of her time at the company had been as painful as grappling with the death of her mother years before. Being unable to discuss it with anyone made it uniquely difficult.
I am voiceless, I am terrified of the NDA that keeps me silent. The only winners were the barristers, solicitors, and managers who covered up. I was paid for my notice period but that was less than the legal fees I incurred. I feel I have lost my rights as a citizen. I cannot report their white collar crimes. I cannot resort to the adjudication. I cannot have justice for the discrimination that I endured because their access to limitless funds allowed them to purchase injustice.
I will finish by saying that as can be seen, when we have enforced silence, behind that silence there will always be a roar. The moment we begin to remove tools that are used to legally allow people to be silenced against their will or coerced into their silence, ultimately people will start to speak and people will start to push back. I hope this legislation and this work goes a far way to be able to give those people back their voice.
I thank the Senator for her legislation on this. I know we spoke about this more than two years ago and we did the first Seanad panel forum on this particular topic when we were all doing things by Zoom. She brought in a lot of the experts in this area who highlighted the fact that this really allows the abusers to continue unchecked with their behaviour and in many instances revictimises the victims. I am glad the Minister has outlined that the Government will move this legislation forward in the Dail - I would hope so - or that they would make the necessary amendments to make sure this particular issue is addressed. This was highlighted in the university sector where there are people who are carrying out bullying and also sexual harassment, a lot of which we had seen in the church previously, and now happening where the existence of a non-disclosure agreement was not even allowed to be discussed which meant that we could not even measure how many non-disclosure agreements there were within the university sector. These are in all levels of employment and totally undermine the victims yet again. Do we have any other contributors?
I congratulate Senator Ruane and indeed her team. This is a really important piece of legislation. As I said on Second Stage, as a trade union official I came across these NDAs and they really are an evil, nasty arrangement designed to silence workers. That is what it is all about, silencing workers who are all too often women. It is a really important piece of work and I congratulate Senator Ruane, her team and I very much welcome the words of the Minister today in terms of his commitment to advance this and he will certainly have Sinn Féin's support.
I begin by saying how proud I am to have been one of the co-sponsors of this really important piece of legislation alongside my Civil Engagement Group colleagues. However, I have to say all praise is owed to my colleague and friend, Senator Lynn Ruane and to Robert in her office, to Brian and her whole team, and the incredible coalition of experts and activists that Senator Ruane assembled to advance this Bill. I also say well done to the Minister and his Department for the work he has done on this. Senator Ruane is no doubt a credit to this House and proof that independent politicians can get things done, which gives us all hope to be honest. We can get things done if we are able to build those alliances and if the Government is openminded enough to listen, as the Minister is and I thank him for that.
This Bill will ensure our legal system, which is supposed to be a guardian of fairness and justice, cannot be used now to threaten, silence, and victimise workers who have endured sexual harassment and discrimination. We know that in order to truly challenge the toxic cultures in workplaces workers need to be empowered to speak out. One person's bravery can inspire another person and it is only when people speak out together that the true nature and extent of the sexist, misogynistic, and predatory nature of many organisations and institutions can be revealed. As a society we are experiencing the beginning of a much suppressed and delayed reckoning with the extent of sexual and gendered violence that takes place. NDAs cannot be allowed to quash that reckoning and I am really glad to hear that the Bill will be progressing.
I will say a little about a related issue I would like to raise. It is the prevalence of NDAs in Workplace Relations Commission, WRC, settlements related to other kinds of violations of the Equal Status Act such as the discriminatory refusal to provide goods or services. Lawyers with organisations such as free legal advice centres who do a lot of work on racist discrimination by businesses say that expansive NDAs have become the norm in these kinds of settlements. It is very worrying.
It is an unfair curtailment of the right of victims of discrimination to speak about their experiences. In its submission to the review of the Equality Acts, IHREC recommended that the Equal Status Act and the Employment Equality Act be amended to limit NDAs in these circumstances. I ask the Government to give real consideration to implementing these recommendations, which come from the experts dealing with these issues on the ground.
Related to this issue is that much sexual harassment and discrimination litigation that is not settled by the parties is now handled in the WRC. This is a major drawback in that civil legal aid does extend to quasi-judicial bodies. This means that workers who cannot afford a lawyer may face their abusive employers who have legal representation without any equality of arms. This recreates the power imbalance that facilitated the harassment and discrimination in the first instance. This is a manifestly unjust situation and it would be great if the Minister could address it when the review of civil legal aid is completed. I thank the Minister and offer huge thanks to Senator Ruane and her team for their fantastic work on this issue.
Question put and agreed to.
Sitting suspended at 3.21 p.m. and resumed at 6 p.m.