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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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    Jonathan L

    The service I received was friendly and professional. I appreciated the timely communications and Mel was always available for any questions I had. I'd definitely recommend Redmans and will use them in a heartbeat should the situation arise again.

    Posted 6 days ago

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    Provided a great service, covered all my requirements

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    Fidel A

    Redmans Solicitors recently helped me navigate a recent employment termination settlement agreement. Chris Hadrill is very professional and you will be in good hands with him. I score Redmans 4 out of 5 because things had to move fast and felt the team member assigned to my case wasn't very responsive at times. Having said that, I was very happy with the outcome and have no hesitation in recommending their services.

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    I would like to take this opportunity to thank Mel Chin, for all her support during my settlement process. Where she provided a professional service and was understanding. I would confidently recommend Redmans Solicitors to my friends and family. Thank you and wishing you all a Merry Christmas.

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    Posted 1 month ago

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    Chris and Sacha were great throughout the entire process. Chris was very helpful once the initial discussions with my company began and before we agreed there was a case. Sacha was very responsive, patient and helpful throughout ensuring I felt I had the right information to make the best decision on next steps. A close friend and wife have both used Redmans in the past few years for unfair dismissals and the service continues to be first-class and I would strongly recommend them again. They definitely help reduce the anxiety that comes with uncertainty around new processes and situations. Thank you!

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