Non-Disclosure Agreements – where are we now?
In the government response earlier this summer to the consultation on the use of non-disclosure agreements (NDAs) in the workplace, it was confirmed that legislation will be introduced. However, in the current climate, bringing forward legislation “when Parliamentary time allows” makes timeframes very difficult to predict.
Nevertheless, there are some changes that employers can sensibly make now, as the government has made clear what changes will be coming. In our earlier insight we warned of the unintended consequences of over regulating the use of NDAs. As we stated, they are often used for the benefit of both parties, enabling employers and employees to move on when a working relationship has broken down.
What the government are now proposing will enable the majority of employers and employees to continue using NDAs for this purpose. However, legislation will seek to ensure that individuals are clear to what they are agreeing and with whom they can discuss details, without being in breach.
The key legislative changes being proposed include:
- Introducing provisions to ensure that nothing in an employment contract or settlement agreement can prevent an individual from making a disclosure to the police, a regulated health care professional, or a legal professional. The changes will enable those seeking medical support to speak freely, as well as allowing the victim of alleged criminal action to report it. The legislation will only extend this right to professionals who are regulated and bound by duties of confidentiality, so disclosure to therapists and counsellors who are not regulated, will not be permitted and may constitute a breach of an NDA.
- Whilst the government has stopped short of introducing standard form confidentiality clauses, legislation will require that confidentiality clauses in settlement agreements and employment contracts set out clear limits. Whilst we do not yet know how the legislation will be framed, certainty in drafting and the use of plain English will benefit both parties.
- Anyone entering into a confidentiality clause on termination will need independent legal advice on the nature and limitations of the clause. Whilst any solicitor advising on a settlement agreement ought to have provided relevant advice on the scope of a confidentiality obligation, the new requirements will ensure appropriate advice is obtained as a condition of the enforceability of that confidentiality obligation.
- The government has indicated a draconian approach to enforcement: if confidentiality clauses do not meet the new legislative requirements, the settlement agreement will be void in its entirety.
Employers should review their settlement agreements in light of the carve outs being proposed, to ensure employees are permitted to talk to regulated professionals and the police. It is clear that, with or without legislation, settlement agreements which even appear to seek to silence former employees inappropriately will reflect poorly on employers if litigation follows. The remainder of the proposals will need more substance before changes to current practices can be made.
Residential property developer tax: Draft legislation published and technical consultation launched
While a number of important issues have been addressed in the legislation, there is still a lot outstanding.
Strategic Planning for Modern Landed Estates
The second in our series of articles on succession planning for landed estates covering a wide variety of matters.
When can you set off claims against different elements of a project
The Court’s decision raises important drafting considerations for construction contracts involving multiple elements of a project.
Drafting terms and conditions or negotiating a contract? Be wary of "unusual" and "exorbitant" exclusion clauses
When drafting a set of terms and conditions, companies must adhere to the requirements contained in the Unfair Contract Terms Act 1977
Stop, collaborate and listen: Top 10 Tips with Collaboration Agreements
Providing you with the top ten tips on collaboration agreements - what should you know?
Preparing your company for sale
We set out here some initial steps to consider in anticipation of a sale.
ESG investment and the challenges for trustees
What challenges does the ESG revolution present for trustees of private family trusts?
The impact of COVID-19 on commercial and residential tenancies
What impact has COVID-19 had on commercial and residential tenancies? Read more here.
Flexible working requests: 5 tips for employers
Charles Russell Speechlys advises discoverIE on its acquisition of Antenova
discoverIE is a leading international designer, manufacturer and supplier of customised electronics to industry.
Coded messages for landlords and tenants
“What does the code of practice mean for landlords and tenants? Read more here”
The family court’s role in micro managing 'trivial' disputes
The recent decision has dealt with the family court’s role in micro managing “trivial” disputes in relation to children
Taxing horizons and fiscal black holes
A super-massive black hole at the centre of the nation’s finances means that tax reform and rates rises look increasingly likely.
Charles Russell Speechlys advises Acora on acquisition of Westgate IT
Westgate IT specialises in providing IT support to businesses in the South West.
Q&A: Wrestling with restrictive covenants
Camilla Lamont (barrister at Landmark Chambers) and Real Estate Disputes Partner Emma Humphreys answer a pair of covenant queries
Grab the tail by the horns - Why is tail spend so critical in today’s outsourced portfolio?
It’s usually invisible, but in all likelihood, you’ve got tail spend.
Nick Hurley quoted by the Society for HR Management on the UK government's proposals to prevent workplace sexual harassment
The U.K. government introduced legislation in July 2021 for employers to take proactive steps to prevent sexual harassment on the job.
Collateral Warranties – Are they also a ‘Construction Contract’?
What are collateral warranties and what do they mean for your construction contracts? Read more here.
Succession Planning for Landed Estates
The first in our series of articles on succession planning for landed estates covering a wide variety of matters.