Putting an End to Unethical NDAs

Earlier this month, the government indicated their intention to crack-down on unethical confidentiality clauses that attempt to conceal harassment by intimidating victims into silence.
Like a shady mob boss paying under the table for a restaurant owner to turn a blind eye to illegal activity in their premises (“you saw nothing,”), unethical Non-Disclosure Agreements prevent individuals from reporting crimes or discriminatory behaviour to authorities for fear of their livelihood or job security.
Following the recent high-profile events surrounding Sir Philip Green’s alleged use of NDAs to stop employees speaking out about bullying in the workplace, legal proposals have been drafted and put forward to tighten the rules around their use.
Announcing the upcoming change in legislation, Business minister Kelly Tolhurst said there continue to be concerns about the ‘unethical’ use of workplace agreements; that new measures must be put in place to stop employers from intimidating whistleblowers and effectively sweeping assault, harassment and workplace abuse under the rug.

In her speech, Tolhurst said: “Many businesses use non-disclosure agreements and other confidentiality agreements for legitimate business reasons, such as to protect confidential information.
“What is completely unacceptable is the misuse of these agreements to silence victims, and there is increasing evidence that this is becoming more widespread. Our new proposals will help to tackle this problem by making it clear in law that victims cannot be prevented from speaking to the police or reporting a crime and clarifying their rights.”
With these new proposals, the government intends to enshrine in law that such clauses cannot prevent people from speaking up to the police, reporting a crime or coming forward with information to support criminal proceedings. Further, new legislation will ensure that a clear, written description of rights is given before any agreements are signed in employment contracts or settlement agreements.
By extending the law to ensure any worker signing a settlement agreement receives independent legal advice prior to accepting anything in writing, individuals are further protected from entering into agreements that put them on the back foot should they experience unfair treatment.
In light of these new proposals, the Department for Business, Energy and Industrial Strategy has launched a consultation to better understand how confidentiality clauses and how they work in practice. The consultation closes on 29 April 2019.

Omar Khan | Commercial Consultant