Employment Equality (Amendment) Bill 2021: The Role of NDAs in 2022

Employment Equality (Amendment) Bill 2021: The Role of NDAs in 2022

By Mark Ramsay, SF Law

Editors’ Note: This article makes brief reference to sexual assault, which some readers may find distressing.

On 14 June 2021, the Employment Equality (Amendment) (Non-Disclosure Agreements) Bill 2021 was thoroughly debated in the Seanad. This Bill was intended to deal with a form of agreement that, presently, is entirely unregulated in Ireland, seeking to resolve issues with the recent practice of non-disclosure agreements (NDAs) being used to prevent victims from discussing their experiences of harassment or discrimination. However, the Bill’s progress has been halted as a review into the operation of the Equality Acts is undertaken, a review which also aims to analyse the Bill. Regardless of the outcome of this review, this Bill should be enacted to resolve the issues it deals with, and arguably should be expanded beyond its current scope.

Non-Disclosure Agreements

Prior to analysing the Bill, it is important to define what an NDA is. Section 1 of the Bill defines an NDA as:

“An agreement … between an employer and an employee whereby the latter agrees not to disclose any material information about the circumstances of a dispute between them concerning allegations of sexual harassment or discrimination.”

Whilst this specific definition is clearly tailored towards the scope of the Bill, it sets out the fundamental elements of an NDA. It is an agreement between two parties, where they agree to avoid discussing certain information with third parties. Traditionally, NDAs were used as a method to protect the trade secrets of companies. For example, if a company sought an outside opinion on a new product it was developing, an NDA would be used to prevent disclosure of the company’s idea. However, more recently, a practice has developed of employers using NDAs in an attempt to cover up unlawful acts committed by companies themselves, or by one of their employees.

Current Abuses of Non-Disclosure Agreements

Recently, several high-profile examples of such uses of NDAs have emerged. One such example is the alleged widespread use of NDAs in Irish universities, as was stated by Senator Ruane whilst speaking on this Bill. She revealed that a number of academics working within the same university had approached her, informing her of an NDA they had to sign in relation to the behaviour of one individual, “who was moved around the college, and eventually on to another school.” This NDA prevented these academics from discussing the individual.

Policies Underpinning the Bill

The 2021 Bill attempts to address situations such as those revealed by Senator Ruane. This Bill aims to combat the power imbalance in these cases between employers and individual employees. As was noted in the Seanad debate on the Bill, this power imbalance is exacerbated where an employee has experienced “weeks, months, years of bullying, sexual harassment or gender-based harassment.” In this vulnerable state, employees may sign these NDAs, as they simply want an end to the abuse by any means necessary.

This Bill also aims to go further in its protection of vulnerable employees. Senator Ruane, one of the main forces behind this Bill, cites a practice referred to as “passing the trash.” This is a situation in which an employer, aware of an offending employee’s unlawful actions, refuses to reprimand them, instead opting to write a glowing reference to pass the employee on to another employer. This practice not only fails victims by its