From one employment lawyer to another, thank you Juliet Carp for some long-overdue balance in the debate on non-disclosure agreements (Getting a balance on NDAs, 29 October).
Anyone who advises on settlement agreements understands that confidentiality clauses have always been part of the accepted boilerplate and are vital to the public policy aim of encouraging parties to settle disputes without recourse to the courts. The suggestion that NDAs are routinely used to allow ‘bad people’ to get away with criminal activity is a gross distortion of reality.
However, it is this extreme picture, populated by pantomime villains, which it is expedient for politicians to push in public for their own political ends – if they create a problem (which does not exist) they can take the credit for fixing it.
NDAs first fell under the spotlight when the story about the Presidents Club dinner broke and, while there was undoubtedly abuse of power in that scenario, the issues do not easily translate into the regular workplace conflicts which are the bread and butter of most employment lawyers. Individuals have to talk to a lawyer before signing a settlement agreement and this provides something of a safety net.
Without the comfort that their money is buying some sort of privacy, it is unlikely employers will be very much inclined to offer generous financial settlements. The losers will be individuals who often welcome a deal to enable them to move on and seek a fresh start. I have certainly never been involved with the actual enforcement of a confidentiality clause in a settlement agreement and I suspect few employment lawyers have. However, outlawing or severely restricting non-disclosure undertakings by parties to settlement agreements could mean that private resolution of disputes in the workplace simply grinds to a halt.
Once again the government risks throwing the baby out with the bath water if the threatened reforms of NDAs announced by Theresa May are not carefully thought through. The omens for this are not good - this is, after all a government sadly lacking in employment lawyers who understand the nuances and subtleties of real life!
Senior partner, Springhouse Solicitors