Employers are to be blocked from using non-disclosure agreements (NDAs) to cover up sexual harassment and discrimination in the workplace, the government has confirmed.
The government’s response, published this week, to the Women and Equalities Select Committee’s June report on NDAs states that it ‘agrees with the committee that it is unacceptable’ that such cases are hidden by confidentiality clauses and NDAs. While there is a ‘legitimate place’ for NDAs in employment contracts and settlement agreements, the government says, ‘using these agreements to silence and intimidate victims of harassment and discrimination cannot be tolerated’.
The government proposes to legislate so that: no NDA provision can prevent disclosures to the police, regulated health and care professionals and legal professionals; limitations in NDAs are clearly set out in employment contracts and settlement agreements; and to enhance the independent legal advice given to individuals signing NDAs.
It will also produce guidance for lawyers on drafting settlement agreements, and introduce enforcement measures for NDAs that do not comply with legal requirements.
Beth Hale, partner and general counsel at employment law firm CM Murray, said: ‘The government is not, as indicated in some headlines, proposing to ban the use of NDAs in cases of sexual harassment.
‘Rather, they are focusing on the important issue of clarity and transparency for those signing such agreements and ensuring that the employment tribunal process is more user-friendly and accessible for individuals. Legislation will be introduced to ensure that all NDAs specify their limitations so that people understand what they are (and are not) prevented from disclosing―this will provide welcome clarity for all parties to NDAs.
‘The proposed changes, when combined with the likely introduction of a mandatory duty on employers to prevent sexual harassment in the workplace, provide significantly improved protections for individuals. It remains to be seen what happens to these proposals given the ongoing political upheaval. More than two years since the #MeToo movement began, we are still waiting for much needed legislative change in this area.’
