NDAs have been in the spotlight for some time, with the Women and Equalities Select Committee in particular expressing concern about the use of "unenforceable and unethical clauses". The government has now published a consultation paper outlining its proposals for how NDAs and other confidentiality agreements could be regulated in future to prevent their misuse. The paper recognises that confidentiality restrictions may be contained either in contracts of employment, or in settlement agreements.

The government is suggesting:

  • Legislating to prevent NDAs being used to try to prevent a worker from making any kind of disclosure to the police;
  • Requiring confidentiality clauses to make it clear that workers are not prevented from blowing the whistle, reporting matters to the police, or disclosing information to a court, and for that information also to be included in written statements of particulars where relevant;
  • Any NDA in a settlement agreement that did not comply with the clear wording requirements would be void in its entirety, while defective confidentiality provisions in employment contracts would be dealt with as a failure to provide a written statement of terms; and
  • That for a settlement agreement to be valid, a worker must have received independent legal advice on the nature and limitations of any NDA contained in it, and on the disclosures that a worker is still able to make.

The government is also asking for views on whether there are bodies in addition to the police that should be excluded from the ambit of NDAs. However, the government is not proposing to mandate the use of approved wording for NDAs, nor is it suggesting that it should be an offence to propose confidentiality clauses that do not meet the new requirements.

The consultation closes on 29 April 2019. Please get in touch with Stefan Martin or Ed Bowyer if you have views you would like us to include in a response to the consultation paper, or to discuss whether any changes are needed to your contracts of employment or settlement agreements in light of the consultation paper and the current political focus on this issue.

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