LEGISLATION aiming to 'crackdown on abuse' of gagging orders and stop bad employment practices is effectively useless, according to a top employment lawyer.

David Martyn, of Thompsons solicitors, said the plans announced last month by the UK Government are merely 'tinkering' with current legislation, and do nothing to protect victims of workplace bullying, harassment or discrimination.

Minister for Small Business, Consumers and Corporate Responsibility Kelly Tolhurst announced the recommendations intend to provide better legal advice for those signing NDAs, and ensure they know they can still talk to authorities.

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Employers are supposed to provide a contract in terms which are easy to understand, and contracts not complying with the law will be voided.

The Herald on Sunday reported on politicians' use of NDAs against employees' claims of discrimination or mismanagement, while other high profile cases have been reported across the public sector, as well as in the entertainment and business industry.

According to Martyn the proposals will not stop employers abusing agreements to silence employees, and gives them no additional rights than they already have.

He explained: "My view is that nobody feels restricted by an NDA from contacting those professionals anyway, almost everyone will have contacted a lawyer if they have signed up to an agreement. If the allegation is serious enough people will have contacted the police.

"It might be constructive if you have people whose health is suffering [due to their ordeal] and couldn't speak to their doctor ..any legislation which makes it clear they can do that may help. But does this feel like like tinkering? Yes it does.

"It is solving part of a problem that was not really a problem. It doesn't tackle abuse of NDAs.

"Sometimes my clients feel very dirty having gone through this process, so I hate to put it this way, but mentally the equation is 'We will buy your silence. You, the employee agree to stop suing us and in return we will give you £20,000.' It is not just money, its peace of mind and a resolution to a very distressing scenario. "Fundamentally that equation remains the same before and after these proposals.

"Will employers still be able to pay an amount of money to keep some, perhaps non-criminal, workplace behaviours quiet? The answer is yes."

READ MORE: The shady world of NDAs and how we got there

However Sarah Mennie, a lawyer who is leading Scotland's first sexual harassment legal advice help service welcomed the proposals.

Mennie, a sexual harassment solicitor at the Scottish Women’s Rights Centre, said the legislation would help "shine a light on a real problem", which movements such as #MeToo and #Timesup have helped bring to the fore.

She said: "The inquiry that initially led to the consultation [about this legislation] shows that employers have been abusing these agreements.

"The Scottish Women's Rights centre has heard from women who believed a confidentiality clause meant they could not report criminal behaviour to police.

"Under existing law, people should always have been able to disclose criminal conduct to police but many people have been misled into thinking that they couldn’t.

"This legislation will hopefully bring clarity and by enacting it as law, it will hopefully reduce the opportunity for employers to take advantage of the situation."

Mennie explained the new sexual harassment helpline hopes to bridge the gap for women unable to afford legal advice.

She said: "There is only very limited legal aid funding available for employment issues, and often women who are most vulnerable to sexual harassment are least able to afford legal advice.

"In the hospitality industry, in particular, there is a greater exposure to sexual harassment and for zero-hours workers many worry if they raise a complaint they won’t be offered more work.

"These are some of the women we hope to be able to help."

On the new legislation, Mennie agreed that it does not "address the underlying issues of sexual harassment, or discrimination in the workplace".

She added: "It is addressing a very specific point. Obviously, you’d rather not get to that point but if you are in that situation then more transparency is a good thing. It also puts an onus on employers to make sure employees know what they are agreeing to."

Read more: The shady world of NDAs and how we got there

One person who signed an NDA while leaving the employment of a politician due to discrimination said they did not believe the proposals, if enacted at the time of their issue, would have helped.

They said: "I understood I wouldn't be able to talk about what happened except to my solicitor and doctors, and my union and their solicitor advised me on the procedure, so I didn't require further legal guidance.

"I had a lot of questions as nothing was written simply, so plain English from the employer would probably have helped to an extent."

They said the plans would not change the "odd imbalance of power towards the employer", explaining: "Nobody is excited to sign an NDA. They have to because its the only way the employer gives them the other side of it. They don't want trouble or they'd have gone to a tribunal. If you need the agreement and the employer wants an NDA, it doesn't matter. You're going to sign it.

"The employer will claim its mutually beneficial, but there's a burden on us, the employee, not to break the confidentiality agreement because the settlement would need to be returned.

"It's an odd imbalance of power and gives the employer - who has done or said something they don't want others to know about - control of the rhetoric around the dismissal."

  • For information on how to get help for sexual harassment at work, contact the Scottish Women's Rights Centre's new helpline on 0808 8010 789, open every Thursday, 5pm to 8pm.