The Law Society has cautioned the government against making an onerous legal advice requirement for non-disclosure agreements.
Under proposals to stop the misuse of NDAs in cases of workplace harassment and discrimination, employees would have to receive written independent advice explaining the terms and effects of the agreement and its legal limitations before they sign.
The Law Society said employees should confirm they have received advice. ‘However, we do not consider it necessary to require the substance of the advice itself to be provided in writing,' it said in response to a consultation. 'Current settlement agreement requirements do not require advisers to provide written advice to the employee, only confirmation that the relevant advice has been given. A similar approach would be more proportionate and avoid creating unnecessary cost and administrative burdens.’
Under the government's plan, employers would not be required to pay for the advice. The Society said employers should be encouraged to make ‘a reasonable contribution’ given the advice is intended to operate as an important safeguard for workers entering into confidentiality agreements.
Chancery Lane also advised against introducing a 14-day cooling off period to allow employees to withdraw from an NDA, pointing out that independent advice prevents rushed decision-making.
Society president Mark Evans said Chancery Lane supported the government's aim of preventing the misuse of non-disclosure agreements in cases of workplace harassment and discrimination.
He added: 'Any reforms must protect workers while preserving access to justice, being practical and proportionate in their application. Independent advice is an important safeguard, helping individuals understand their rights and make informed decisions. Additional procedural requirements should be carefully considered given the existing pressures on the employment tribunal system.
'The focus should be on preventing misuse without creating unnecessary barriers to settlement or dispute resolution. Reforms that increase cost, complexity or delay risk discouraging settlement, adding pressure to tribunals and slowing the resolution of workplace disputes.'
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