Civil service and BBC deny using confidentiality clauses

14 Feb 2019 By Francis Churchill

Parliamentary committee hears major public sector employers are shunning NDAs in wake of controversy

Two of the country’s largest public sector employers have claimed they do not use controversial non-disclosure agreements (NDAs) to cover the circumstances or terms of settlement agreements in discrimination cases.

A parliamentary select committee heard evidence from both the civil service and the BBC that they had used NDAs sparsely or not at all.

As part of its enquiry into the use of NDAs in discrimination cases, the Women and Equalities Committee (WEC) heard that in the past three years there had only been six examples of confidentiality clauses within NDAs being used in central government departments.

Rupert McNeil, chief people officer for the civil service, told the WEC that from 2015 there had been 150,000 exits from the organisation and just two examples of confidentiality clauses related to discrimination – one in a government department and the second in an arm’s length body.

Similarly, Sarah Jones, group general counsel for the BBC, said NDAs had not been used in any equal pay or pay-related sex discrimination cases for the last three years.

Concerns were raised last year that the BBC was using confidentiality clauses to silence victims of gender discrimination and harassment.

However, Jones said that following a long period where NDAs had not been deployed, the BBC recently formalised its policy of not using them to cover the circumstances leading up to a settlement agreement or the fact of negotiation and terms of any settlement agreement, including in discrimination cases.

When pushed by Labour MP Jess Phillips to address suggestions by women working at the BBC that the corporation continued to use “strict confidentiality clauses to silence complainants on matters that go beyond trade secrets”, Jones said: “I’ve described what our settlement agreements do… I absolutely stand by what I said on that.”

In 2017, the BBC became embroiled in a number of equal pay disputes after transparency rules covering the pay of top talent unveiled large discrepancies between male and female personalities. The gender pay row re-erupted last year after the former head of the corporation’s China bureau, Carrie Gracie, resigned, citing in an open letter concerns that she was being paid less than her male counterparts in other regions.

When asked if she would hypothetically be happy for someone who had alleged they had been sexual harassed or bullied while working at the BBC to speak about their experience, Jones said: “It certainly wouldn’t be the subject of a confidentiality clause in a settlement agreement.”

Jones also said the BBC had not used any clauses to stop people talking about arrangements or agreements made relating to equal pay disputes over the last three years.

The evidence session follows an announcement by minister for women and equalities Penny Mordaunt that the government will launch a probe into the use of NDAs in the workplace.

Responding to allegations made by the Telegraph that retail magnate Philip Green had used NDAs to silence former employees’ allegations of serious misconduct, Mordaunt said the probe would consider limiting the use of NDAs in discrimination cases.

Green has consistently denied all the allegations against him.

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