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The Government has moved to allay fears that non-disclosure clauses (“NDAs”) in settlement agreements may be preventing access to justice for employees in the workplace.

The Government’s detailed response was published in response to the House of Commons’ Women and Equalities Committee Report on ‘The Use of Non-Disclosure Agreements in discrimination cases’.

What is an NDA?

NDAs are contractually-binding agreements (or clauses in other agreements, such as settlement agreements) which seek to prevent disclosure of certain information, such as:

  • an employer’s confidential information; and/or
  • the existence of a settlement agreement, the terms of the settlement agreement, and/or the circumstances giving rise to the use of the settlement agreement

The Committee’s Report

The Committee’s Report highlighted concerns that the use of NDAs in the workplace was preventing allegations of discrimination and harassment (and particularly sexual harassment) from being properly investigated and dealt with, and the effect that the use of NDAs has on some employees.

The Committee’s Report recommended that the Government should:

  • ensure that NDAs cannot prevent legitimate discussion of allegations of unlawful discrimination or harassment, and stop their use to cover up allegations of unlawful discrimination, while still protecting the rights of victims to be able to make the choice to move on with their lives;
  • require standard, plain English confidentiality, non-derogatory and similar clauses where these are used in settlement agreements, and ensure that such clauses are suitably specific about what information can and cannot be shared and with whom;
  • strengthen corporate governance requirements to require employers to meet their responsibilities to protect those they employ from discrimination and harassment; and
  • require named senior managers at board level or similar to oversee anti-discrimination and harassment policies and procedures and the use of NDAs in discrimination and harassment cases.

The Government’s Response

In its Response the Government confirmed that it will introduce new legislation to attempt to ‘crack down’ on the misuse of NDAs in the workplace, particularly when the use of the these NDAs seeks to prevent employees from making protected disclosures. The Government’s Response stopped short, however, of making it a criminal offence to propose the use of a confidentiality clause designed to prevent workers from making protected disclosures.

Our solicitors’ comments

Chris Hadrill, the partner in the employment team at Redmans, commented on the Government’s Response: “This seems to be a reasonably measured response from the Government – although there are some circumstances in which settlement agreements or NDAs are arguably misused, adequate protections already exist to prevent employers from forcing employees not to ‘blow the whistle’. To this extent, the planned further legislation is superfluous.”

If you have any questions about settlement agreements or non-disclosure agreements then please contact our solicitors by calling us on 020 3397 3603 or emailing us.

About

Redmans Employment Team deal with employment matters for both employers and employees, including drafting employment contracts and policies, advising employers and employees on compromise agreements, handling day-to-day HR issues, advising on restructures, and handling Employment Tribunal cases for both employers and employees Call 020 3397 3603 to speak to one of the members of our employment team or email us on enquiries@redmans.co.uk. Redmans have offices in Richmond, Chiswick, Hammersmith, Fulham, Kingston, Wimbledon, Ealing, Kings Cross and Marylebone (meetings strictly by appointment only).

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    Testimonials

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    269 Reviews

    Sue W

    The people at Redmans talk to you with respect and make you feel like they take your situation personal. They clearly care and are extremely professional. I have recommended Redmans to many people.

    Posted 3 days ago

    Anonymous

    Redmans Solicitors were consistently prompt, efficient and professional from the start of my reaching out to them for support in relation to contentious negotiations of an employment matter that continued for almost two months resulting in a positive settlement agreement. Chris Hadrill was diligent, thorough, empathetic and objective in his advice and guidance, showing deep and broad knowledge of the law and legal processes plus extensive practical experience in handling complex matters, resulting in clear and pragmatic advice in ambiguous circumstances that resulted in a very good outcome. I fully recommend Chris Hadrill and Redmans Solicitors! I have made this review anonymous purely because of the confidentiality obligations in the settlement agreement concluded.

    Posted 1 month ago

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    Redmans solicitors provided legal support and advice for a settlement agreement. Excellent customer service, very professional. The senior associate solicitor kept me updated throughout the process, showed empathy and the agreement was signed-off / completed within the agreed timeline.

    Posted 1 month ago

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    Posted 1 month ago

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    Posted 1 month ago

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    Posted 2 months ago

    Anonymous

    Chris Hadrill advised me on a redundancy settlement agreement. He was very responsive, easy to deal with and gave me good advice at a stressful time.

    Posted 2 months ago