We regularly advise both employers and employees on the drafting and negotiation of settlement agreements. These agreements invariably include provisions requiring either or both sides to refrain from discussing the terms of the deal or the circumstances giving rise to it. These provisions are sometimes referred to as ‘NDAs’ (or non-disclosure agreements). In recent years, some have questioned the use of NDAs. Now it looks like the Government has decided to take action.
Where is the concern coming from?
Concerns about the use and abuse of NDAs are, to some extent, understandable. One particularly prominent campaigner, Zelda Perkins, was formerly a PA to Harvey Weinstein. When reading Ms Perkins’ experience of signing a settlement agreement, it is hard to feel anything other than sympathy for the predicament in which she found herself. She felt she had no choice but to agree to draconian ‘gagging clauses’ aimed at preventing her from revealing Mr Weinstein’s criminal behaviour. Ms Perkins’ experience (and others like it) has motivated the government to consider limiting the use of ‘NDAs’. However, many lawyers (us included) have expressed concerns about the unintended consequences of too wide a ban.
In our experience, appropriately drafted confidentiality clauses rarely give rise to objections from our clients. Indeed, much of the criticism levelled at the use of such clauses is, in our view, misplaced. Instead, in the absence of such clauses, is it possible that settlements may be more difficult to negotiate, which would often be to the detriment of both employers and employees?
How would the law work?
Notwithstanding our concerns about a proposed change in the law, it looks like the Government believes that action is required. Precisely how any new laws will work remains to be seen. However, in broad terms, the plan is to outlaw confidentiality clauses which prevent workers from speaking about allegations of harassment or discrimination. Any related ‘no badmouthing’ restrictions would be equally unenforceable.
Want to read more?
This is one of those issues that transcends employment law and has the potential to catch the attention of the wider public, including the mainstream media. If you're interested in reading what The Guardian has to say on the matter, click on the following link:
James qualified as a solicitor in 2001, having completed his academic studies at the University of Sheffield. Throughout his career, he has worked for a number of prestigious regional law firms, joining stevensdrake as Head of Employment Law in 2012.
As well as pursuing and defending the full range of Employment Tribunal claims, James spends a considerable amount of his time providing advice and support to businesses of various sizes. He advises on a wide variety of HR and employment law issues, including employment contracts, HR processes and procedures, grievances, disciplinary issues, absenteeism, performance management and settlement agreements. He also regularly helps clients with redundancy exercises and internal reorganisations.
James has previously been described as an ‘Associate to Watch’ by Chambers UK, an independent guide to the legal profession. His clients regard him as “thorough”, “easy to work with” and someone who avoids blinding them with legal jargon.
Outside of work, James balances family life with ambitions of swimming, running and cycling a bit faster.
stevensdrake © 2019 All Rights Reserved. Authorised and regulated by the Solicitors Regulation Authority Number 525527. *stevensdrake* and *stevensdrake solicitors* are trading names of stevensdrake limited (registered in England and Wales under number 7159192). A list of the directors is displayed at the above address. stevensdrake are authorised and regulated by the Financial Conduct Authority (FCA) for debt collection and insurance mediation. It is registered the FCA under registration number 702596.
