Government Consultation On Non-Disclosure Agreements

In June 2019, the Committee on Women and Equal Rights published its report on the application of confidentiality clauses. When the time comes, we will respond fully to the recommendations of the CENSC. The application and misuse of confidentiality clauses or confidentiality agreements (“NDAs”) remains a concern, particularly when it comes to allegations of sexual harassment. In response to pressure from groups such as the Committee on Women and Equal Rights (CEC) and the Equality and Human Rights Commission (EHRC), the Ministry of Economy, Energy and Industrial Strategy published a consultation paper on proposed measures to prevent abuses of the NDA last March. The commission`s report contains 45 recommendations and concerns for the government regarding the misuse of confidentiality agreements in cases of discrimination. The government`s response to these recommendations is given below. Today`s announcement will work in parallel with the consultation I launched earlier this month that provides new safeguards for workers to deal with this kind of heinous behaviour. Employers should be informed of these reforms and proposals, as they will have an impact on the approach to entering into confidentiality agreements during employment and termination. In addition, we are seeing a trend towards strengthening worker protection in this area, with potential criminal and civil consequences for employers with respect to sexual offences (whether by making ourselves responsible for harassing workers or agents or by taking action against an employer for non-compliance with harassment protection). legislation to clearly define the restrictions imposed by NOAs in employment contracts and transaction agreements; While the response states that new enforcement measures should be introduced in general, it does not confirm whether non-compliant confidentiality clauses are considered to be unsuitable in transaction agreements. The response indicates that more respondents have accepted these proposals, but leaves the conclusion unclear. In addition, the response confirms that there is no proposal to punish an employer for proposing or using a non-compliant confidentiality clause.

The commission collected oral and written evidence from a large number of individuals and organizations, including individuals, employers and lawyers.