This consultation has been issued in response to the recent Women and Equalities Select Committee (WESC) report, which called on the government, regulators and employers to increase their responsibility in addressing sexual harassment and discrimination in the workplace.
The WESC advocated for the restriction or banning of confidentiality clauses (non-disclosure agreements (NDAs)).
The government confirmed in the consultation paper that it considers that confidentiality clauses (NDAs) have an important role to play in employment context - whether they are used as part of employment contracts to protect trade secrets, or as part of settlement agreements to allow the parties to move on with a clean break.
Although the government has stated that it is not in favour of an outright ban of confidentiality clauses, it does consider that further regulations may be helpful to restrict their misuse.
The consultation requests examples of bad practice in the use of confidentiality clauses, including feedback on proposals to:
If these proposals become law, employers will need to review and amend their employment contracts to ensure that any confidentiality provisions comply with new requirements.
You will also need to ensure that the wording used in any settlement agreements includes explicit statements about the extent of any confidentiality obligations and the requirement to take legal advice on these.
The government is seeking views from employers and responses must be submitted by 29 April 2019 on the BEIS website.