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The government has finally published its response to the Women and Equalities Select Committee’s (WESC) June 2019 report on the use of non-disclosure agreements (NDAs) in workplace harassment and discrimination cases.

The response addresses all forty-five recommendations and concerns raised by the WESC in detail. It seems to be (mostly) a reiteration of the government’s previous response to its own consultation on proposals to prevent the misuse of confidentiality clauses in situations of workplace harassment or discrimination, published on 21 July 2019 (the July Response).

Key Recommendations That Will Be Carried Forward

  • A ban on provisions in NDAs or confidentiality clauses that prevent disclosures to the police, regulated health and care professionals and legal professionals.
  • A requirement that the limitations of NDAs to be clearly outlined in settlement agreements and employment contracts.
  • New enforcement measures for NDAs that do not comply with legal requirements in written statements of particulars and settlement agreements.
  • Guidance for solicitors and legal professionals responsible for drafting settlement agreements.
  • Enhancement to the independent legal advice required by individuals before signing NDAs to include specific advice on the nature and limitations of any confidentiality clauses.

At present there is no timetable for bringing legislation forward in respect of the above. There are a number of other areas where the government will continue to consult and consider its position. These include the obligation to provide factual references and extending the time limit for bringing claims based on sexual harassment, pregnancy or maternity.

What Should Birmingham Employers Do?

All employers should now have reviewed their settlement agreement wording, and any non-disclosure/confidentiality wording used in employment contracts, to ensure that they comply with the standards expected by government and guidance issued by The EHRC and the Law Society.

Kathy Halliday is a Partner in the Employment Law team at award-winning law firm VWV. Kathy can be contacted on 0121 227 3711 or at khalliday@vwv.co.uk.