Earlier this year, a consultation was carried out examining proposed measures to prevent misuse of confidentiality clauses in the workplace in circumstances where workplace harassment or discrimination was carried out. Responses from interested parties were asked for, and the government has now released their response which confirms new legislation will be introduced in this area.
The first question asked by the consultation was whether legislation needed introducing to prevent provisions within contracts or agreements which prohibited signees from disclosing matters to the police. With many positive responses, the government has confirmed that a new law will be set in place which goes slightly further than this question. A new law will ensure that no provision will prevent a signing individual from making disclosures to the police, regulated health and care professionals, or legal professionals. This ensures victims, for example those of sexual harassment and discrimination, are not placed in circumstances where they believe they cannot make such a disclosure because they have signed a confidentiality agreement.
The proposal to outline the limits of confidentiality clauses to individuals will also be taken forwards by the introduction of new laws. This includes requiring confidentiality clauses in settlement agreements to set out their limits on disclosure and clauses in employment contracts will legally need to set out their limits in a written statement of particulars. Laws introduced for this will require the wording to be clear and specific, for example, the wording needs to be clear as to what information can or cannot be shared and which parties this can be shared with.
Advice requirements for those entering into settlement agreements containing confidentiality requirements will also be amended via legislation to require legal professionals to provide advice on the nature and limitations of confidentiality requirements. If this advice is not received, the settlement agreement will be invalid.
Enforcement of confidentiality clauses which do not comply with the new legislation will be through the employment tribunal, where additional compensation can be awarded when a successful claim is brought.
The new government legislation is awaited, with no set date for implementation currently. In the meantime, advisory bodies including Acas and the Solicitors Regulatory Authority are planning to update existing guidance and produce new guidance on confidentiality clauses and agreements to ensure organisations are supported and have a clearer understanding of the law. Organisations should review thier current practices around confidentiality clauses and agreements to assess whether these will need updating in order to comply with future legislation.