The Government has announced new proposals to curb the use of ‘unethical’ non-disclosure agreements (NDAs) in light of a number of high-profile cases of sexual harassment in the workplace.

Under the proposed new rules, the Government would legislate so that workplace confidentiality agreements cannot be used to prevent people reporting harassment or discrimination to the police, or prevent people speaking out during legal proceedings.

They would also make it a requirement that workers agreeing to confidentiality agreements receive support in order to access independent legal advice on the limitations of any agreements.

This extends to providing employees with a clear, written description of their rights before anything is signed regarding confidentiality.

Julian Cox

Speaking about the changes, Julian Cox, Head of Employment at iLaw, said: “It has become increasingly clear that in some cases NDAs have been used to protect individuals against potential criminal prosecution or at the very least have been used in a way that some would consider unethical.

“I am sure the vast majority of well-meaning employers will welcome these changes, but they must understand the impact that it could have on their use of NDAs and the limitations it may impose on existing agreements.

“Employers must take time to carefully review existing documents and should seek additional advice when preparing new NDAs to ensure that they don’t potentially overstep the mark if and when the new legislation comes into place.”

Julian added that even without the protection of the proposed law employers should also consider changing their approach in regards to NDAs due to the increased media attention in these agreements and confidentiality clauses in general.

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