Government takes view on misuse of confidentiality clauses
The government has responded to the earlier consultation on measures to prevent the misuse of confidentiality clauses. Nearly 600 responses were received and these sat alongside the views coming from six roundtable discussions with stakeholders.
While acknowledging that “confidentiality clauses have a legitimate place in the employment context and are not misused in all scenarios”, the government states it cannot tolerate the use of these clauses to silence and intimidate victims of harassment and discrimination. It therefore confirmed an intention to legislate to ensure that a confidentiality clause cannot prevent an individual disclosing to the police, regulated health and care professionals or legal professionals; that the limitations of a confidentiality clause are clear to those sign them; and that confidentiality clauses which form part of a settlement agreement and those which are entered into at the beginning of an employment relationship will be covered; improve independent legal advice available to an individual when signing a settlement agreement; -rovide guidance on drafting requirements for confidentiality clauses; and introduce new enforcement measures for confidentiality clauses that do not comply with legal requirements.
There was also confirmation that the government does not intend to require employers to collect data and report annually on the number of confidentiality clauses used, saying that this type of information is not in itself meaningful.
There is no firm timescale for implementation of these measures, particularly given the uncertain times caused by Brexit.