Non-disclosure agreements make the headlines in 2019

Non-disclosure agreements (NDAs), when used correctly can protect commercially sensitive or confidential information. But in the last couple of years their use has been criticised and condemned, not least for their use to cover up sexual harassment.

It was widely reported that Harvey Weinstein deployed NDAs to keep alleged victims quiet. The issue of NDAs made the headlines again last October when Sir Philip Green was named as the leading businessman accused by a newspaper of sexual and racial harassment. The Court of Appeal had issued an injunction preventing publication of Sir Phillip’s name in circumstances where the five staff members involved had signed NDAs contained in settlement agreements.

The UK Government has now published a consultation on measures to prevent misuse of confidentiality clauses  in situations of workplace harassment or discrimination.  The purpose of the consultation is to examine:

1. Whether there should be limitations on confidentiality clauses in the employment context to make it easier for workersto understand when they are permitted in law to make a disclosure to the police or other people despite the existence of a confidentiality clause;
2. How to ensure workers are clear about the rights they maintain when they sign a confidentiality clause or start work for a new employer; and
3. How to enforce any new regulations on confidentiality clauses

The proposals include a requirement for the written statement of particulars of employment to include a clear description of the limits of any confidentiality clause it may contain; and for a settlement agreement to be valid, the independent advice a worker receives, would have to cover the nature and limitations of any confidentiality clause and the disclosures a worker is still able to make.

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