NDA ban will address ‘huge problem’ for creative freelancers – Arts Professional

The proposed reforms to non-disclosure agreements (NDAs) will provide important protection for freelancers as well a “huge step forward”, founder of Can’t Buy My Silence UK and former assistant to Harvey Weinstein Zelda Perkins has said. 

Speaking to Arts Professional, Perkins said it was “absolutely the intention” of government to include those without worker status in the proposed ban of NDAs that silence victims of harassment in the workplace.

The amendments to the Employment Rights Bill are set to void NDAs used by employers against employees who have been subjected to harassment – including sexual harassment and discrimination – meaning victims will no longer have to suffer in silence.

Perkins was the first woman to publicly break an NDA with Harvey Weinstein and has campaigned for eight years to stop employers using them to silence abused workers as part of the campaign Can’t Buy My Silence UK.

“The creative industries have a huge problem, mostly because it is a very vulnerable workforce because it’s all basically freelance,” she told Arts Professional.

“The nature of the industry is that it’s small. People’s reputations are easily lost and each part of the creative industry is a very small and almost incestuous sector, whether it’s classical music or film or TV.”

She said she didn’t think the creative industries were “particularly worse” than other sector their use of NDAs, but that they present different issues.

One such issue is that “in a sector where IP [intellectual property] and the IP of material such as scripts comes into play, it means that a lot of people can be presented with an NDA in a reasonable situation”.

“People can be lulled into a false sense of security because they know there are lots of times where they should be signing an NDA reasonably,” she added. 

An NDA can include any agreement containing confidentiality or non-disparagement clauses.

The contracts were originally created to protect intellectual property or other commercial or sensitive information. However, reports show they are now commonly used to prevent victims from speaking out about crimes.

Freelance workers

Perkins also addressed worries that the bill would only protect contracted workers, meaning those with more unstable work positions would not receive the same protection.

She said: “The intention of the bill is absolutely to cover people who don’t have formal employment contracts and also if there’s third party harassment, so witnesses will also be protected.”

The government is “very aware” of the vulnerabilities freelance workers face. 

“The whole point is for the net to widen to catch freelancers, interns and people who don’t have formal work contracts and who wouldn’t normally be caught with that net.

In conversations with government, Perkins said she pushed for the bill to include everyone and described the published amendments as a “landmark moment”.

According to the amendments, a contract can mean any contract “whether express or implied and (if express) whether oral or in writing, by which an individual undertakes to do or perform (whether personally or otherwise) any work or services for another party”.

Equity policy officer for employment rights Dugald Johnson told Arts Professional that this referred to “a power the government has, in the amendment, to lay regulations extending the scope of the protection to such contracts (i.e. self-employed contractors)”.

As he understands it, “on the face of the amendment it will only apply to workers and employees.”

“But the fact the government has put this power in the amendment might suggest it plans to use it,” he added.

Perkins said she is “swinging from euphoria to deep suspicion that there’s a trick”, but is pleased with how the story has been picked up by the media and the public, which will “keep the government’s feet held to the fire to make sure they keep to the commitments they’ve made”.

“There are lots of regulations and definitions to be negotiated but at the moment it is absolutely the government’s intention to cover these people, which is why we’re so excited about it.

“But the devil is in the detail, and this is not yet in law. We’re going to be consulting really closely with the policy team on how these amendments are put together.”

She says she is confident the amendments will be passed as they are, saying that “the reality is, it would have been very unwise for the government to have put those intentions as they have if they weren’t going to hold to them”.