Employees should receive independent legal advice before signing a non-disclosure agreement, the government has recommended under what it says are plans to stop the cover-up of harassment and discrimination.
A consultation opened on Wednesday seeking views on proposed changes such as tighter conditions for an NDA to be valid and rights for workers to speak about their experience regardless of what they have signed.
The government proposes that before entering into an agreement employees should receive independent advice explaining the terms and effects of the proposed NDA as well as its legal limitations. An adviser, the consultation states, ‘can be a qualified lawyer, a fellow of the Institute of Legal Executives employed by a solicitors’ practice, an authorised officer of an independent trade union or a certified advice centre worker (e.g. from the Citizens Advice Bureau or a law centre)’ and should have indemnity insurance.
Other proposals include that NDA signatories should be able to make permitted disclosures to groups or individuals specified in the regulations, which would include a qualified lawyer or a registered foreign lawyer. An NDA should include a 14-day ‘cooling off period’ and a written copy of the agreement should be provided to all parties.
The consultation refers to the Solicitors Regulation Authority’s warning notice on the use of NDAs which states that solicitors should not prevent someone who has entered into an NDA from keeping a copy. By going further and requiring a written copy of the agreement in an accessible format would ‘help to ensure that workers have a better understanding of what they have signed and what their rights are’.
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The government will consult on changes to the legal framework around whistleblowing later this year.
Employment rights minister Kate Dearden said: ‘These changes will ensure no one has to suffer in silence and give workers confidence that inappropriate behaviour will be dealt with.’
Zelda Perkins, co-founder of Can’t Buy My Silence and former PA to disgraced Hollywood producer Harvey Weinstein, called the consultation ‘a decisive moment in the fight to end the silencing of victims’. She added: ‘This is the chance to create world-leading protections and finally stop the misuse of confidentiality agreements to hide wrongdoing.’
Jo Mackie, employment partner at national law firm Michelmores, said the changes ‘if passed’ would be a ‘welcome addition to the rules binding settlement agreements’.She continued: ‘Forbidding non-disclosure agreements to hide harassment, sexual or criminal acts is to be welcomed, as it will better enable good employers to keep the working environment safe, and give a strong message to perpetrators that they cannot hide,’ she added.
On the proposed requirement for independent legal advice, barrister Georgina Calvert-Lee, a specialist in employment law, equality and discrimination at Bellevue Law, said: ‘In practice, employers offer such a small contribution to their workers’ legal fees that they are forced to make do with cursory advice that provides little more than a certificate to confirm they have secured a lawyer’s sign-off. Many cannot afford to pay the legal fees required to obtain proper advice on their own circumstances unless they are lucky enough to be served by a lawyer willing to waive over 75% of their usual fees.’
The consultation will close on 8 July. A government response will be published afterwards.
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