However, it was also found that “there is a need to protect concern that non-disclosure agreements have been used to hide workplace harassment or intimidate victims into silence”.
Disclosure of information
Under the proposed legislation, organisations will not be able to prevent an individual from disclosing information to the police, regulated health and care professionals or lawyers.
Clear limitations
Individuals can expect to be more informed on their rights and the limitations of disclosure, which will need to be set out in a written statement of particulars.
Improved legal advice
At present, legal advice has to be sought when an individual signs a settlement agreement but this will be extended so that individuals benefit from advice on the limitations of any confidentiality clauses.
Guidance on drafting NDAs
Bodies such as ACAS and the Solicitors Regulatory Authority are expected to draft guidance on NDAs so that organisations understand the legislation when it comes into force.
Tribunals
The new legislation will be enforced through the tribunal courts with the remedy being additional compensation for successful claims.
A date is yet to be set for the implementation of the new legislation. The government’s full press release on their plans was issued on 21st July 2019: Crack down on misuse of Non-Disclosure Agreements in the workplace.
My thoughts
At present, NDAs cannot be used to prevent an individual from reporting any wrongdoing to the police but from what we’ve seen in the news, it would appear NDAs are being used to make individuals believe this is not the case, something which is not acceptable!
It’s also concerning that individuals may feel isolated and unable to seek mental health support to talk about their problems if they believe they’ll breach an NDA in doing so.
Individuals should become more aware of their rights under the proposed legislation and the subsequent news coverage we’ll certainly see off the back of the proposals coming into force.
Overall, I welcome this transparency to ensure that victims of a crime are not led to believe they cannot report criminal activity to the police, as well as ensure they receive appropriate medical attention and mental health support.
For organisations, this will mean doing more than updating confidentiality clauses when the legislation comes into force and the ACAS guidance is issued.
The HR and Legal sector are already commenting on the legislation only being a small part of the solution to eradicating workplace discrimination and sexual harassment. The main point here is that this new legislation is about dealing with the issue once it has happened. So they, and I, would like to see more done to prevent inappropriate behaviour from actually occurring in the first place. This appears to be the growing consensus from the HR sector.
However, to implement meaningful changes that might prevent these inappropriate behaviours in the workplace it is going to require a wide array of measures to ensure an appropriate workplace culture from training workshops, clear and well-communicated workplace policies, to the right behaviours displayed from the top-down. My concern is how many small business owners could and will come up with a plan to reduce the likelihood of sexual harassment and discrimination occurring in their workplace as they’re hiring say, employee number 7 into their team. I’d guess not many.
In the case of this hypothetical business, they’ll probably want to settle such a claim rather than going through a tribunal process. This method of dispute resolution through a settlement agreement is often more favourable than the financial costs of a tribunal and reputational damage.
Although, it’s also anticipated that NDAs will be banned from use in cases involving harassment and discrimination, so exactly how the legislation will work in such cases and settlement agreements is unclear.
As the proposed legislation takes shape, I hope to see more guidance and resources to support small businesses in getting it right from the outset rather than focus being on the legal terms.
