Reshaping Confidentiality: The Changing Landscape of Non-Disclosure Agreements

"The Government is set to ban the use of controversial NDAs where workers have complained about workplace harassment or discrimination. This proposal is part of the Employment Rights Bill. If enacted, new rules will make confidentiality clauses in settlement agreements (or other agreements) void, to the extent that they attempt to prevent individuals from discussing allegations of or disclosing information about harassment or discrimination. The rules also extend to the employer's response to the allegations."

"The use of NDAs stands at a critical crossroads. Imminent and future legal reforms are poised to fundamentally alter their scope and enforceability in the context of discrimination and harassment. NDAs have historically been used as a crucial way of maintaining corporate confidentiality and protecting intellectual property and trade secrets. They are routinely used throughout the entire employment lifecycle, from hiring through ongoing employment and extending to an employee's exit. Nonetheless, substantial legislative changes are set to limit their scope significantly."

There have been long-standing concerns about the use of Non-disclosure agreements (NDAs), particularly in relation to sexual harassment allegations, amplified by the MeToo movement. NDAs have traditionally protected corporate confidentiality, intellectual property and trade secrets and are used throughout the employment lifecycle from hiring to exit. Imminent legal reforms, notably proposals in the Employment Rights Bill, would ban NDAs that prevent workers from discussing or disclosing harassment or discrimination and would render such confidentiality clauses void. The rules would also cover employer responses. Narrow "excepted agreements" may remain, permitted only when a worker actively requests confidentiality. No implementation date is currently available.

Read at Business Matters