Mary Seery Kearney (Fine Gael) | Oireachtas source

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.