New proposals include legislating that workplace confidentiality agreements cannot be used to prevent people reporting harassment or discrimination to police. Measures also include extending the law to ensure the worker agreeing to confidentiality agreements receives independent legal advice on the limitations.
The plans are part of the government’s ambition to create a fairer workplace as part of the modern Industrial Strategy. The rules around non-disclosure agreements (NDAs) and confidentiality clauses are set to be tightened under new legal proposals announced by Business Minister Kelly Tolhurst. This includes enshrining in law for the first-time that individuals cannot be prevented from reporting crimes, harassment or discrimination to the police. Many businesses legitimately use NDAs and confidentiality clauses in agreements to prevent disclosure of confidential information. However, in recent months there has been increasing evidence to suggest that NDAs and confidentiality clauses are being abused by a very small minority of employers to intimidate whistleblowers, conceal harassment and discrimination incidents, including sexual assault, physical threats and racism. Prime minister Theresa May said, ‘sexual harassment is against the law and discrimination of any kind will not be tolerated - in the home, the workplace or in public. We’re sending a clear message that a change in the law is needed to ensure workers are able to come forward, be aware of their rights and receive the advice they need before signing up to them.’
The proposals aim to put an end to the unethical use of these agreements and encourage good practice from employers and lawyers. They include: clarifying in law that confidentiality clauses cannot prevent people from speaking to the police and reporting a crime (or prevent the disclosure of information in any criminal proceedings); requiring a clear, written description of rights before anything is signed in confidentiality clauses in employment contracts or within a settlement agreement; extending the law that means a worker agreeing to a settlement agreement receives independent advice; the advice must cover the limits of any confidentiality clauses in the settlement agreement so a person is in full possession of all the relevant facts; and, this will help to prevent employees from being duped into signing gagging clauses which they were unaware of.