Further to our recent article, the Minister for Women and Equalities, Penny Mordaunt, has promised that the Government will take all "necessary steps" to clamp down on the misuse of confidentiality clauses, including in the use of settlement agreements as regards discrimination and harassment in the workplace.
Misuse Of Confidentiality Clauses: Background
As we have pointed out previously, when drafted correctly, confidentiality clauses within a settlement agreement are designed to be mutually beneficial for both employee and employer by protecting both of their legitimate interests. Misuse of confidentiality clauses, where there is an attempt to “gag” an employee from speaking out in the public interest, such as in relation to discrimination and harassment in the workplace, would be void and unenforceable. Such a disclosure would amount to a protected disclosure (i.e. whistleblowing) under the Public Interest Disclosure Act (PIDA) 1998 (as amended by the Enterprise and Regulatory Reform Act 2013), and the right to make protected disclosures overrides confidentiality clauses contained in any settlement agreement that attempts to restrict that right, thereby rendering that part of the confidentiality clauses as void and unenforceable.
Nevertheless, to combat the misuse of confidentiality clauses, more can be done to enhance the protections already afforded by the whistleblowing legislation, by legislating to properly set out what the limits of confidentiality clauses are. This, we believe, should include making it mandatory to include a clause within the settlement agreement itself confirming what those limits are. By making that mandatory, then the parties to the settlement agreement are fully aware of the limits, and what it is they are signing up to.
Promise Of Government Action
The Minister for Women and Equalities, Penny Mordaunt, told the Daily Telegraph that "Sexual harassment at work is illegal, yet this disgusting behaviour is something that many women still experience today. It is clearly unacceptable that Non-Disclosure Agreements have been used to hide workplace harassment or intimidate victims into silence and we will take the necessary steps to stop this happening....Confidentiality agreements are designed to provide businesses with a legal framework that allows good practice and trust, what they cannot do is conceal illegal activity. Anyone who is a victim or witness to criminal activity at work cannot be bound by a confidentiality agreement from reporting this to the police. I want to make clear to those individuals who think they can bully and harass people at work, that the government and good employers will not accept this abhorrent behaviour and will act to make sure that workplace rights are protected for everyone."
Select Committee Continues To Hear Evidence
The Women and Equalities Select Committee has been continuing to hear evidence into the use of confidentiality clauses, including in relation workplace settlement agreements. Giving evidence, both the Civil Service and the BBC denied that misuse of confidentiality clauses had occurred within their organisations, and both stated that they do not use confidentiality clauses as regards the circumstances surrounding or the terms relating to settlement agreements in discrimination cases.
