BUSINESSES and organisations regularly use confidentiality clauses or non-disclosure agreements (NDAs) in legal contracts with employees to protect commercially sensitive information.
In fact, in a recent poll carried out by Legal Island in conjunction with O’Reilly Stewart Solicitors, 72 per cent of businesses and organisations in Northern Ireland confirmed the use of NDAs in termination agreements.
But in England, following a government consultation in March which raised a number of cases in which confidentiality clauses had been used by employers to ‘gag’ staff and former staff from raising a complaint, the government has revealed new plans to tackle the misuse of NDAs.
The Women and Equalities Committee called for a complete ban on the use of NDAs to cover up sexual harassment and discrimination, and the #MeToo movement suggested that confidentiality clauses were being used by businesses to prevent women from speaking out.
Whilst the new legislation in England will not prohibit the use of NDAs in respect of legitimate reasons such as to protect commercially sensitive information and to prevent employees sharing such information with competitors, it is an attempt by the government to address concerns raised by the public.
The Government response to the consultation on measures to prevent misuse of confidentiality clauses includes:
• Legislating to ensure that a confidentiality clause cannot prevent an individual disclosing to the police, regulated health and care professionals or legal professionals;
• Legislating to ensure that the limitations of a confidentiality clause are clear to those signing them;
• Legislating to improve independent legal advice available to an individual when signing a settlement agreement;
• Producing guidance for solicitors and legal professions on the drafting requirements for confidentiality clauses; and,
• Introducing new enforcement measures for confidentiality clauses that do not comply with legal requirements.
The new legislation is therefore an effort by government to crackdown on the use of NDAs to silence and intimidate employees who are victims of workplace sexual harassment, racial discrimination and assault.
Whilst the newly proposed legislation does not apply to Northern Ireland, discrimination, harassment and abuse are issues experienced by many in the Northern Irish workplace.
In respect of the work carried out by the Equality Commission, its director of legal services Anne McKernan stated that: “On average more than a fifth of complaints of discrimination received by the Commission are about sex discrimination - of these 21.5 per cent are to do with pregnancy or maternity."
Whilst the measures taken in England to address the misuse of NDAs are a step in the right direction in tackling unacceptable workplace cultures, it will only tackle a small part of the problem of workplace harassment and discrimination.
Employers should be proactive and step up to protect their employees where such harassment, discrimination and assault occurs.
:: Hannah McGrath (hannah.mcgrath@oreillystewart.com) is a solicitor in the commercial department at O’Reilly Stewart Solicitors (www.oreillystewart.com)
