You may remember that we reported in March that the Government had commenced consultation on measures to prevent the misuse of confidentiality clauses in situations of workplace harassment or discrimination. The Government have now published the outcome of their consultation.
The Government has stated that there is a legitimate place for confidentiality clauses, for example to prevent employees sharing commercially sensitive information. Perhaps more interestingly, they also found that many employees recognised the value of confidentiality clauses, seeing them as an opportunity for them to make a clear break.
However, they have also made it clear that the use of such clauses to silence victims of harassment will not be tolerated. It is on this basis that the Government has confirmed that they will make legislative reforms.
They have stated their intention to legislate so that a confidentiality clause cannot prevent an individual disclosing to the police, regulated health and care professionals or legal professionals. Legislation will also ensure that the limitations of a confidentiality clause are clear to those signing them and that there is improved independent legal advice available to an individual when signing a settlement agreement.
The Government also consulted on the proposal of a specific form of words to be used when drafting a confidentiality clause. Whilst they have not agreed to such a reform, they do intend to produce guidance on drafting requirements for confidentiality clauses. Legislation will also require that wording is clear and specific.
Finally, in order to ensure that there are repercussions for those who do not comply with the new legal requirements, the Government has stated their intention to introduce new enforcement measures. Employees will be eligible to receive additional compensation in the Employment Tribunal where they successfully raised a claim and it is found that the confidentiality clause in their written statement of terms does not meet the new drafting requirements.
The report concludes that they will legislate to implement these changes when Parliamentary time allows. Given the current political climate, it could therefore be a long wait, but we will update you as and when there is something to report. In the meantime, if you have any questions about settlement agreements or confidentiality clauses more widely, please get in touch with your dedicated Employment Solicitor today.