The law change that could transform toxic workplaces

0:00Alexandra Topping:This is The Guardian.

0:08Zelda Perkins:Today, a change in law around NDAs and how it could change workplace culture forever.

0:23Zelda Perkins:Have you ever signed a non-disclosure agreement? If you have, there's a chance you might not even know for sure. And if you do, there's an even stronger chance that not a lot of people in your life would have any idea. Zelda Perkins used to work for Harvey Weinstein. That experience was brutal. But by breaking her NDA, she helped kickstart the Me Too movement. Thousands of women around the world spoke out against sexual harassment using just two words, Me Too.

0:52Alexandra Topping:Now there are millions of Me Too's out there on social media. Allegations quickly surfaced in other industries. politics, food, theater, and journalism.

1:03Zelda Perkins:Ever since, she has been campaigning for years to stop companies using NDAs to protect the kind of behavior and culture she wants to see stamped out. Bullying, harassment, sexual assault, racial abuse, corruption, criminality. The list is long, and the law has been slow to catch up.

1:30Zelda Perkins:The real harm and the real journey starts after you've signed that NDA. And that you suddenly realise that your voice has been taken away. And it's not just been taken away publicly. It's been taken away privately. It's been taken away in every part of your life. And that is for the rest of your life. From The Guardian, I'm Nosheen Iqbal. Today in Focus, one woman's fight to stop bosses using NDAs to cover up misconduct.

2:04Zelda Perkins:Zelda, you worked with Harvey Weinstein when you were in your early 20s. What did your life look like as an employee at Miramax? It was a very fun, exciting, extraordinary place to be in the early 90s. Miramax was, you know, at its most successful. Harvey was at his most powerful. he was sort of best mates with Bill Clinton we had all the sort of biggest movie stars in the kind of Miramax inverted commas stable and it was a very fun we were in the middle of Soho lots of parties lots of fun things to do and the spectre of Harvey hovered over us but he was in the States and certainly when I started working there I didn't even know who he was Right and so this is very as you said it's quite glamorous 90s Soho and you were very young.

3:00Zelda Perkins:Could you tell me a bit more about your actual job? What is it that you did? Because it was a small office we kind of covered everything. I read a lot of scripts, I wrote a lot of notes on scripts, I used to go to the scout for projects at the theatre. That was kind of the main body of my work but very early on I started working there. Essentially I was Harvey's assistant for whenever he came into London or took international trips. And I'd been told actually by another slightly more junior person in the office and she said, oh, well, make sure you keep your puffer jacket on and, you know, always sit in an armchair.

3:37Zelda Perkins:Don't sit on a sofa so he can sit next to you. You know, don't let him give you a massage. Wow. That's not the kind of advice you should expect about your boss. Zelda, what was the tipping point for you when it came to working with Harvey Weinstein? So after I'd been working for Harvey for about four years, three and a half years, I had somebody, Rowena, come on board to help me because I was looking after Harvey on my own, essentially. She met him once in London with me. And then the next time was a few weeks later at the Venice Film Festival. And I had told her very clearly in interview, as I told everybody that I interviewed, I said, Harvey will behave aggressively he's pretty frightening boss he shouts you'll be fine if you don't get stuff wrong um and you know he'll also he will also you know have a go he'll he'll come on to you but you just tell him where to put it you know because essentially that was as bad as it ever got with me but I genuinely wasn't concerned that he would attack anybody genuinely and so what happened and uh she she had a a horrible experience with him that night um and she came to me the next morning and told me what had happened um you know she didn't give me a full detail but basically she made it pretty clear that he had physically assaulted her at which point i was absolutely and utterly flawed and horrified and furious and i said well we need to go to the police and she didn't want to go to the police at that moment and I totally understand that.

5:13Zelda Perkins:I had a senior producer above me and I went and told her when we got back to England and she just said, get yourself a lawyer. And for me, that was like the first big shock because she wasn't surprised when I told her what had happened. And, you know, there was no, oh, there's a process, let's report it to HR. She just said, you better get yourself a lawyer. I ended up going, finding a law firm that was literally across the road from us in Soho and I went and spoke to a solicitor there and actually they were quite dismissive with us and were basically like, you're just going to have a settlement agreement, damages agreement, you'll get a good reference, you'll get some money to sort you out and you just need to forget about this and move on.

5:52Zelda Perkins:Well, tell me about that process. I mean, presumably at one point you are agreeing the settlement, which at this point are we allowed to call a non-disclosure agreement or was that term never even? No, that term is never used. I mean, it wasn't called a non-disclosure agreement. So let's just say Miramax called this an employee settlement and you're now in a room with their lawyers, your lawyer, potentially Harvey Weinstein. How does that thing go? It was terrifying. We were kept in a room with no windows. We had no food and drink. We weren't allowed pencil and paper. If we wanted to go to the bathroom, we had to be escorted.

6:26Zelda Perkins:We were made to feel like criminals. I mean, as an example of, you know, one evening that we were there, we'd done a whole day there and then we were let off for a break. And we came back at five in the afternoon after a two hour break. And we didn't leave those offices again until five o 'clock the next morning. Wow. So, I mean, that's a form of torture. Yeah. I mean, I think I described it as I can only describe it as a form of sort of legal waterboarding. Zelda, what was it that you and Rowena were asking for? And what is it that the lawyers were telling you to settle for? All we were asking for was provisions to make sure that Harvey couldn't do what he had done to us.

7:10Zelda Perkins:Our requests were that he couldn't travel with female assistants, that there had to be an HR policy, there had to be some form of policy that everybody in the company knew what their rights were, knew what behaviour was appropriate or not appropriate, because I'd never been told that. that if he tried to settle with an employee over misconduct in the next three or four years, that this had to be reported to Disney. I said, I don't want money because if we have money, it changes the entire optics and reasoning behind this agreement. This agreement is to stop Harvey behaving like that. And the lawyers laughed and said to us, no, no, it doesn't work like that.

7:48Zelda Perkins:You won't even get in the room to negotiate the things that you want unless you make a financial request initially. How much was the settlement for? What price were Miramax willing to pay to cover up what Weinstein did to you and to Rowena? We got£125 ,000 each. And I mean, at the time that was enormous. And so I said to the Lord, I literally made up the biggest amount of money I could think of. If we're going to ask for money, it has to be indicative of the crime. And what was your life like in the immediate aftermath? How were you feeling? Well, I was pretty flawed and I was flawed by the experience, really, of going through the negotiations of settling that agreement and how not one lawyer in that room supported two young women who were reporting a crime, essentially.

8:36Zelda Perkins:And that, you know, that shook me and broke me to the core, but far more than, you know, Harvey. And it was also difficult because my entire kind of network of friends and family didn't know what was going on, didn't know why I'd left. I couldn't speak to them. I couldn't explain anything. I didn't know how to even handle not speaking because all of a sudden, like not being able to be your normal self with your friends or your family. you know I realized that I couldn't go to job interviews because when I had to make up lies lies that I looked like I believed I had to not be triggered or get angry I had to not talk about my work experience even really because I wasn't allowed to I was only allowed to acknowledge that I'd worked at Miramax and I realized that I was essentially bound to Harvey for the rest of my life and that every day for the rest of my life I was going to be being abused by this agreement.

9:41Alexandra Topping:We're going to move on now to that new fallout this morning for Harvey Weinstein. Overnight the movie mogul fired from his job at the film studio he once founded over those explosive sexual harassment allegations.

9:56Zelda Perkins:Zelda, after decades of silence you ended up breaking your NDA in 2017 and you told your story to reporters from the New York Times. Following that, in the wake of Me Too, you then began a campaign called Can't Buy My Silence, which specifically called for the end of misuse of NDAs. Can you tell me why? Because this is what it's all about. The media, the tsunami of Me Too was hugely important and, you know, has made such a huge cultural impact but in terms of the kind of focus on Harvey and Harvey's behaviour I felt it was really important that people understood how this behaviour happens. This behaviour happens because of the system, this behaviour happens because the law protects the powerful, this happens because you can buy justice, this happens because you can buy silence and you know this abusive power comes across the board, whether you're a movie star or a McDonald's manager.

10:55Zelda Perkins:And to me, you know, by just looking at the ogre Harvey, who was the perfect ogre, we were being distracted from the real issue. Zelda, for people listening who don't quite understand the impact that it has on being silenced in this way, who think, okay, well, you suffered something horrible at work. You signed an agreement. You've probably given a bit of money. Move on. Could you explain what it feels like and particularly for the people that you've spoken to and been campaigning on behalf of of the impact on one's job prospects and on their life I think this is the most disturbing part of it and it's also the hardest bit and I'm glad you asked and but the catastrophic effect it has on people is unbelievable because essentially you're being gaslit by society you're being told that your experience is not true not valid not allowed you have to relive your trauma on your own and being given money does not help with that trauma your entire experience being denied not only denied but but disappeared um has a has a huge effect on people's mental health you're also aware that you are feeling complicit and guilty in the fact that you are protecting in many cases a perpetrator of repeated abuse that you are part of the system and that grows within somebody it doesn't diminish it grows and as a human being you can't survive in that and you can't change human nature listen we're all made up of dark and light there's always going to be bad men, there's always going to be bad women, but you can change the law.

12:50Zelda Perkins:Lexi Topping, you're a senior reporter for The Guardian. You've been reporting on this story for years. Now, broadly speaking, for those of us who haven't had any dealings with NDAs, those are non-disclosure agreements, can you explain what they are?

13:06Alexandra Topping:an NDA is quite simply a gagging order it means that when you get a settlement from work because you've made a complaint or because something has happened you can't then if you sign that agreement talk about it and some of them can be more restrictive than others and some of them will mean you can't speak to a doctor that you can't speak to your friends that you can't speak to future employers and some are a little bit less restrictive but essentially at the heart it's a legal document that stops you talking about what happened to you. Okay and what were they generally initially designed for? So NDAs in and of themselves aren't like these evil pernicious documents.

13:48Alexandra Topping:You know they're quite important and they generally were designed for commercially sensitive information within companies.

13:55Zelda Perkins:So say if I worked for a pharmaceutical company and I developed an incredible new drug that I left there would likely be an NDA to stop me from then selling that information to my next employer. 100 % be an NDA to stop you talking about that information.

14:08Alexandra Topping:But what it's become is this kind of pervasive legal threat to people who have been through often horrific situations. And, you know, they are used sometimes in really awful situations where people have had stuff happen to them that amounts to criminality or abuse or harassment or bullying. In other cases, they're just used as a kind of almost as a matter of course. You know, you just can't talk about anything that's ever happened here.

14:39Zelda Perkins:Wow.

14:40Alexandra Topping:OK. So it sounds like a widespread misuse. I mean, we're talking about like 90 percent of cases where people have had entered into some kind of settlement. These NDAs are part of the agreement. You know, we often think of NDAs being used like Zelda Perkins' NDA by, you know, by Hollywood or by huge companies with high-powered executives. And they are indeed used in those scenarios. But they're also used across the board in almost every single industry. They're used in our industry. They're used in the hospitality industry. They're widespread in low-paid, insecure work. The fight against NDAs, it feels to me that's something that's been bubbling under the surface for a long time.

15:27Alexandra Topping:But the momentum has gathered in the last couple of years. And a campaign like this is never down to one person. But if you did want to focus in on an individual, it's Zelda Perkins. You know, she's like a dog with a bone. She just wouldn't let it go.

15:46Zelda Perkins:Coming up, how could a change in the law affect your workplace?

16:11Alexandra Topping:the Employment Rights Bill going through the Lords now to stop this pervasive practice once and for all.

16:17Zelda Perkins:Lexi, last week Zelda's campaign saw a major victory. What happened?

16:24Alexandra Topping:So last week we saw an amendment to the Workers' Rights Bill that we'll see quite simply NDAs banned in the cases of bullying, sexual harassment or abuse. So that doesn't mean a ban on NDAs will stop. obviously they can still be used for valid reasons but it means that if you are a victim you cannot be put under an NDA to silence you and that is huge yeah you know we've seen this happen in drip feed in some other countries there's provinces in Canada where this is the case there's 27 states in the US and the Republic of Ireland became the first country to have a kind kind of widespread policy on this.

17:05Alexandra Topping:But actually, in one fell swoop, the UK government has gone further than all of that. And put in this position where literally people just aren't going to be able to use them anymore. It's quite simple. Once it's in law, they won't be able to be used. And it's kind of beautiful in its simplicity. You know, it sounds a bit inside baseball, and people who don't get this stuff don't realise how important it is. But But having reported on it for so many years, I was so excited. I saw that we broke the news. It was great to see that we broke the news on Monday evening. And I was sat on the sofa and I saw it pop up as an alert.

17:44And I was like, you're joking.

17:46Alexandra Topping:It's just happened. I can't believe it. Because it goes further than any other country has gone. And it will do more, I think, than almost anything else in the Workers' Rights Bill to protect workers in the workforce.

18:07Zelda Perkins:So Lexi, what impact do you think this proposed change in the law will have on our workplaces and on our work culture in the UK from here on?

18:18Alexandra Topping:Well, listen, I'm a cynic because I'm a hack. So lawyers will always find a workaround. That's what you have to be cautious of. The way this bill is written, the way the amendment is put forward, and how carefully it is constructed will be really crucially important. So I think that's the first thing to say. You know, we're not over the line yet. But if, and it's a big if, that goes ahead, then I genuinely think that this is a total workplace game changer. The main message here from this amendment is that there is nowhere left to hide. If you think you can be sued or if you think that your name is going to be dragged through the mud or if you think that suddenly you're going to be the focus of attention, then you just might think twice about doing it.

19:01Alexandra Topping:Because what happens at the moment is that someone is a sexual harasser in one workplace. They get a rap on the wrist. They get nudged out of the door. But they're under an NDA. Their victim is under an NDA. And they just go to the next place and do it all over again. So the hope is that by breaking that cycle, you make people face up to the consequences of what they've done or just not do it in the first place.

19:25Zelda Perkins:Lexi, obviously, you have so much invested in this as a reporter. How are you feeling now? I'm really amazed and delighted that the government has been bold enough to go for something that is really quite strong.

19:40Alexandra Topping:You know, we're in an environment, in a global environment at the moment, where things like diversity and inclusion, protecting people from bullying and harassment, has been downgraded and is, you know, in the States, completely under attack. So this is a really bold move. You don't get very many wins in this job, and you don't get to cover very many stories for a long time that end up with a positive outcome. So I'm taking that as a win, and it's just, it's been a real delight. Fantastic. Lexi, thank you so much for your time.

20:12Zelda Perkins:Thank you.

20:18Zelda Perkins:That's it for today. This episode was presented by me, Narsheen Iqbal. It was produced by Lea Green and Karis Reid. Sound design is by Rudy Zagadlow and the executive producer was Humer Khalili. See you again tomorrow.