Margot Harvey, Senior Legal Analyst
Margot, formerly our Head UK Legal Analyst, is now studying for the Master of Laws (LLM) Solicitor’s Practice Programme at City University of London, aiming to qualify as a solicitor in England & Wales later this year. She focuses on employment, higher education and sexual abuse cases in the UK team.
A proposed change in the law would render void NDAs regarding harassment or discrimination at work. The proposed new amendment to the Employment Rights Bill, which is currently under consideration in the House of Lords, could make confidentiality clauses covering breaches of the Equality Act void.
If passed, any NDAs covering up discrimination or harassment by employers, other employees (such as colleagues) or third parties (such as clients or customers) would be rendered void. This would cover allegations of harassment or discrimination, as defined by the Equality Act 2010, as well as disclosures about how an employer responded to allegations of harassment or discrimination. The ban would not cover allegations of failures to make reasonable adjustments.
This marks a significant change in the law. In theory, exit packages aim to compensate employees when they lose their jobs. In practice, NDAs are required by employers as a prerequisite to settlement, particularly in cases involving discrimination or harassment at work. Those who have suffered harassment or discrimination at work often report feeling pressured to sign NDAs before agreeing a settlement package. This causes additional stress and can, in some cases, retraumatise victims. Misuse of NDAs can also lead to repeat offenders remaining in post because their previous victims are not allowed to share their experiences.
This amendment aims to end systemic misuse of NDAs and promote safety and transparency within the workplace. For employees and employers who are committed to creating safe workplaces, this is excellent news.
Some commentators have raised concerns regarding a possible reduction in settlements resulting from this change. Employers may be less interested in settling claims if they cannot request an NDA in return. Theoretically, this could mean more claims progressing through to ACAS and the Employment Tribunal, stretching the already overburdened services further.
It is important to note that under the ban, individuals will still be able to request mutual NDAs from their employers after they have taken independent legal advice. The hope is that NDAs will only be used in cases where they are both appropriate and mutually beneficial.
The discussion about NDAs and their uses or misuses has been debated in conferences and the halls of parliament for several years. We will be following the debate on this proposed amendment with interest and bringing you the latest developments as they happen.
McAllister Olivarius advises both employees and employers on a wide range of workplace issues, from contracts and grievances to discrimination and dismissal. If you need clear, practical guidance on any aspect of employment law, contact us today to book a free initial consultation.
