Non-disclosure agreements imposed to stop individuals from reporting harassment and discrimination are to be outlawed. A clause to be introduced into the Employment Rights Bill, currently in the House of Lords, will prevent the misuse of such agreements, the government said.
Under the amendment, NDAs and similar deals will be made legally void where they attempt to prevent someone from speaking about harassment or discrimination. The new law also applies to ‘non-disparagement’ clauses that have been used to prevent individuals from speaking out.
The final legislation is subject to change, but the government is understood to have proposed that any confidentiality clauses must be at the request of the victim with no undue attempt to influence. People making such agreements must also have received independent legal advice and be able to speak to trusted, prescribed individuals. NDAs may also be time limited and include a cooling-off period.
Employment minister Justin Madders said: ‘These amendments will give millions of workers confidence that inappropriate behaviour in the workplace will be dealt with, not hidden, allowing them to get on with building a prosperous and successful career.’
Zelda Perkins, founder of campaign group Can’t Buy My Silence and the first woman to publicly break an NDA with film producer Harvey Weinstein, said confidentiality clauses will no longer be abused to cover up harassment and discrimination.
‘Across the country people will be safer as a result of this law,’ she added. ‘If anyone faces abuse or harassment in their work they will be able to speak up without the fear of being silenced. And bosses, without the ability to sweep wrong doing under the carpet, will be forced to act, to deal with persistent perpetrators of abuse, and protect their staff.’
However, Karen Jackson, founder-director of specialist and leading employment & discrimination law firm didlaw said: 'Banning such clauses is potentially extremely damaging for victims who desire the reassurance and security that their case cannot be talked about by their employer. It also reduces the negotiating power of the victim, if they cannot offer confidentiality in return for a settlement.'
The Solicitors Regulation Authority has made clear that where law firms are acting for a client in a matter which involves an NDA, they must have specific regard to the code of conduct. This includes not abusing one's position by taking unfair advantage of those signing an agreement and not preventing anyone from providing information to regulators or the police that is in the public interest.
The bill has now at report stage in the Lords where it will have a third reading next week.
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