Government publishes response to consultation on the use of NDAs in workplace harassment or discrimination cases


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The government has published a response to its consultation on proposals to prevent the misuse of confidentiality clauses in cases of workplace harassment or discrimination.

It will introduce new legislation to ensure that confidentiality clauses cannot prevent individuals making a disclosure to the police, regulated health and care professionals or legal professionals (although it will not cover therapists or counsellors within this exemption). There will be a requirement for the limitations of a confidentiality clause to be clear to those signing them, and for mandatory legal advice on a settlement agreement to include the limitations of any confidentiality clause.  

Any confidentiality clauses which do not comply with the new legal requirements will be void, and new guidance will be published by the Equality and Human Rights Commission (EHRC), the Solicitors Regulation Authority (SRA) and Acas to clarify the law and good practice. The limitations of any confidentiality clause will be added to the list of written employment particulars that must be given to all employees, and a failure to comply with this will be enforceable in the usual way. No clear timeline has been given for the introduction of the new legislation, but it is expected that these proposals will come into force within a relatively short timeframe.

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