The government has published a response to its consultation on confidentiality clauses: measures to prevent misuse in situations of workplace harassment or discrimination. The response can be found here.
Whilst acknowledging that confidentiality clauses have a legitimate place in employment contracts and settlement agreements, the government states that using these clauses to silence and intimidate victims of harassment and discrimination cannot be tolerated. A number of proposed reforms to the current statutory position in respect of NDAs and confidentiality clauses have therefore been proposed.
Of significant note include proposals to:
- legislate so that confidentiality clauses clearly set out their limitations
- legislate to ensure that, when signing a settlement agreement, individuals receive advice not only on the nature of the confidentiality requirement but also on the limitations of confidentiality clauses
- produce guidance on drafting requirements for confidentiality clauses
- introduce new enforcement measures for confidentiality clauses that do not comply with legal requirements
- ensure that confidentiality clauses do not prevent any disclosures to the police
Arguably, these proposals reflect “best practice” anyway and Howarths always advocate a fair approach to the drafting of all contractual provisions. Although we have no fixed date for any new legislation on these points (we will receive confirmation “when parliamentary time allows”) we will keep you informed as to all any changes and ensure that all of your standard documentation is updated accordingly.