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Time to put a limit on ‘gagging’ clauses?

13.03.2019

‘Gagging’ clauses, also known as non-disclosure agreements (NDAs), can be found in employment contracts, a separate standalone document and/or in a settlement agreement (often given to an employee when they exit a company).

Generally speaking, NDAs forbid an employee from publicly disclosing information about their employer. But what does this information include? Of course, this would depend on how the clause is drafted, however, often these types of clauses refer to ‘confidential information’ relating to the company. This narrows it down somewhat but there is still a lot of information that could come under this heading.

This broad approach to ‘gagging’ employees has inevitably resulted in some employers using these types of clauses to prevent employees from reporting something quite serious that has happened within the workplace, either directly to them or that they have witnessed. This has become increasingly more of an issue recently where female employees have been speaking up about sexual harassment in the workplace where their employer sought to rely on an NDA to prevent them from being able to report this to third parties, including the police. This has picked up a lot of attention in the media, especially in the wake of the #metoo campaign, which shone a light on the fact that many victims are being silenced by these ‘gagging’ clauses.

What is the government doing about it?

The government has rightly recognised this as a major issue and, last week, indicated that it will aim to stop employers from using these clauses to intimidate victims of harassment into silence. Business Minister, Kelly Tolhurst, said that measures are needed to ensure good practice following reports of employers drawing up NDA clauses to prevent allegations of harassment in the workplace from being reported.

Whilst it’s only the minority who abuse their powers in the workplace, Kelly said that, “There is increasing evidence that confidentiality clauses are being abused by a minority of employers to intimidate victims [and] conceal harassment and discrimination in the workplace – including sexual assault, physical threats and racism. This is unacceptable.”

What will the new rules be?

Some of the proposals being put forward include:

  • Legislation to ensure that NDAs do not prevent individuals from disclosing information to the police
  • Ensuring that the employee who signs a settlement agreement receives specific independent advice on the limits of the confidentiality clauses
  • Any confidentiality clause in a settlement agreement that does not meet new wording requirements would be void

The consultation closes on 29th April and asks for input from both employers and employees, as well as legal advisers involved in drafting these clauses.

How does this affect the #metoo movement?

This is a huge step forward for #metoo campaigners, as well as individuals making other types of protected disclosures at work because they will not be at risk of being sued by their employer/former employer for breaching an NDA when making such a disclosure. This should help to keep employees safer within the workplace because anyone who is a victim of sexual harassment, or other unlawful conduct, will not be silenced by an NDA.

This will also send out a clear message to employers who are engaging or allowing such conduct to take place within their organisations; that this behaviour is unacceptable and not tolerated by society.

How can Barcan+Kirby help?

Our expert employment law solicitors can provide advice on NDAs and all other aspects of contract law for both employers and employees. To speak to a lawyer specialising in employment law, call us on 0117 905 9763 or complete our online enquiry form.

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