In response to recent criticism about confidentiality clauses in settlement pay-offs, the government launched a consultation on 4 March discussing measures to prevent the misuse of confidentiality clauses in situations of workplace harassment or discrimination. The consultation closes on 29 April 2019.

In the consultation, the government declares that “In the employment context, confidentiality clauses are primarily used in two key ways.
They can be clauses within wider contracts of employment or within settlement agreements. There are already legal limitations on such clauses, but evidence suggests a minority of employers are using them to intimidate victims of harassment into silence.”

The business minister Kelly Tolhurst said: “What is completely unacceptable is the misuse of these agreements to silence victims, and there is increasing evidence that this is becoming more widespread. Our new proposals will help to tackle this problem by making it clear in law that victims cannot be prevented from speaking to the police or reporting a crime and clarifying their rights.”

A brief summary of the consultation reveals that the government proposes to:
• Ban confidentiality clauses which prevent a victim reporting or discussing potential criminal acts to/ with the police.
• Ensure that confidentiality clauses in employment contracts are included in the written statement of particulars of employment issued at the start of the employment relationship.
• Require that all confidentiality clauses highlight the disclosures which confidentiality clauses do not prohibit, and making any confidentiality clauses which do not comply with this void in their entirety.

I am already taking into account these likely recommendations when drafting settlement agreements for employers, but if you have any questions regarding existing confidentiality clauses, please do not hesitate to contact me.

For more information on the new government proposals, please visit:https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/783011/confidentiality-clauses-consultation.pdf