At the end of 2018, a report from a committee of the UK parliament called on employers and regulators to take a more proactive role in relation to sexual harassment in the workplace, including in relation to the use of confidentiality (non-disclosure) agreements.
In its recent response to that inquiry, the government has set out its ‘measures to prevent the misuse of confidentiality clauses in situations of workplace harassment or discrimination’. This response, together with the launch of its consultation on tackling the wider issue of sexual harassment in the workplace, reflects the UK’s continued focus on the issue of workplace harassment.
Confidentiality clauses tend to be drafted into contracts of employment and settlement agreements. They are provisions in those contracts which seek to prohibit the disclosure of information. While recognising that confidentiality clauses serve as a useful and legitimate mechanism both during the course of and after employment (for example, to prevent employees from sharing company proprietary information with competitors), the UK government has made it clear that they should not be used to ‘gag’ and intimidate victims of workplace harassment and/or discrimination. The government has confirmed that, when parliamentary time allows, it will provide guidance on drafting requirements for confidentiality clauses and legislate to, in summary: