Employers beware: Crack down on misuse of NDAs in the workplace

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Government consultation recently closed on 29th April this year which looked at regulation of confidentiality clauses within non-disclosure agreements or NDAs.

In the employment context this means confidentiality clauses as part of both employment contracts and settlement agreements. The government sought to address cases where employers have used confidentiality clauses to prevent victims of workplace harassment or discrimination from speaking out.

The government published its response to this consultation last month and decided that confidentiality clauses could remain within employment contracts and settlement agreements but reforms are needed. These reforms to confidentiality clauses form part of the wider response to sexual harassment in the workplace.

The government proposes to introduce legislation so that confidentially clauses are clear to anyone signing an agreement and that confidentiality clauses cannot prevent an individual from disclosing information to the police, regulated health and care professionals or legal professionals. The updated legislation will also introduce new enforcement measures for confidentiality clauses that do not follow legislative requirements.

The government has made clear that these clauses designed to intimidate victims of harassment and discrimination cannot be tolerated and that the new legislation will be designed to tackle unacceptable workplace cultures.

Currently, confidentiality clauses cannot prevent an individual from “blowing the whistle” or making a protected disclosure (for example regarding a criminal offence or danger to health and safety).

It is understood that ACAS are currently developing guidance on the use of NDAs in the workplace. There is not yet a timescale for implementation of the above measures and the Government has said that it will legislate “when Parliamentary time allows”

I would therefore recommend that when drafting or reviewing your confidentiality clauses within employment contracts and settlement agreements you make clear what is covered in them particularly when you work in a regulated environment such as a school or within the care sector. Should you require any more information about this article please contact Claire Sleep at claire.sleep@ashtonslegal.co.uk or call 01223 431094.

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