The Government has commenced consultation on measures to prevent the misuse of confidentiality clauses in situations of workplace harassment or discrimination. This consultation has been prompted by the wave of research and enquiries into sexual harassment in the workplace in light of the #MeToo movement.
Concerns have been raised that confidentiality clauses have been used to make workers believe that they cannot discuss anything that occurs in the workplace with anybody. A confidentiality clause may also suggest that the worker does not have the right to make a disclosure or pursue an employment tribunal claim when this is not the case. Such clauses are unlikely to be legally enforceable but they can leave the victim afraid to report an incident or to speak out about what they have experienced.
The Government is proposing new legislation to ensure no confidentiality clause can prevent a person from making a disclosure to the police. Additionally the Government wants to make it clearer to workers that they still maintain some disclosure rights even when they sign a confidentiality clause. Practically speaking, this would require that confidentiality clauses set out their limitations when drafted, either in settlement agreements or as part of a contract of employment.
Currently, a worker must have received independent legal advice on a settlement agreement before it is valid. The Government is proposing to extend this requirement, specifically so that independent legal advice is sought on any confidentiality clause contained therein.
The Government has considered how these new requirements would be enforced and has proposed that any confidentiality clause in a settlement agreement that does not meet the wording requirements would be void in its entirety. It is felt that confidentiality clauses in employment contracts should not be void in their entirety as these usually cover matters of commercial sensitivity. Instead, a requirement to be clear on the limits of any confidentiality clause should be included in the written statement of particulars that must be given to all employees. This already has an enforcement mechanism through the employment tribunals, although may not be raised as a separate claim.
The Government is inviting contributions to their consultation until 29 April 2019. We will advise you of any updates after this date. If you have any questions about how this may affect your business, do not hesitate to get in touch with your dedicated advisor today.