Lynn Ruane (Independent) | Oireachtas source

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.