On 23 October 2024, the new, positIn the employment context, the most common area for non-disclosure agreements is settlement agreements, under which an employee agrees to settle all claims in return for a compensation payment often where the employer has been unable to resolve a grievance including about unlawful discrimination or sexual harassment. It is unlawful to prevent an employee from making a protected disclosure (i.e. whistleblowing). However, what constitutes a whistleblowing is not sufficiently clear and may not catch all disclosures about discrimination and sexual harassment. For example, if the disclosure is not made in the public interest or made to prescribed persons, unless of an exceptionally serious nature and not for personal gain, then the gagging clause preventing disclosure about sexual harassment may be lawful.

Following, the Government’s consultation on reforming the law on confidentiality clauses in 2019, the Government pledged to take five key pieces of action, the result of which would including making it unlawful to seek to prevent an employee disclosing sexual harassment:

• Legislate to ensure that a confidentiality clause cannot prevent an individual disclosing to the police, regulated health and care professionals or legal professionals;

• Legislate so that the limitations of a confidentiality clause are clear to those signing them;

• Legislate to improve independent legal advice available to an individual when signing a settlement agreement;

• Produce guidance on drafting requirements for confidentiality clauses; and,



• Introduce new enforcement measures for confidentiality clauses that do not comply with legal requirements.

Legislation is yet to be introduced to enact these commitments although at that time the government made it unlawful to seek to prevent an employee from disclosing sexual harassment to the Equality and Human Rights Commission by widened the scope of prescribed persons in the whistleblowing legislation.

In March 2018 the Solicitors Regulation Authority (SRA) reminded solicitors about their professional obligations and Code of Conduct. The SRA issued a warning notice on the use of non-disclosure agreements (NDA) to its members. Solicitors, that use or facilitate NDAs improperly will be at risk of disciplinary action in breach of their professional regulations. The SRA issued guidance about express wording for permitted disclosures that should be included in all agreements with gagging clauses and to prevent clauses that prevent disclosure by indirect means. This applies both to solicitors advising employers as well as the solicitor, who advises the employee or worker (a settlement agreement is not legally binding unless the employee work worker receives independent advice from a solicitor or other qualified adviser).

The Government is currently conducting a review into expanding the framework for whistleblowing legislation, and the outcome of that review is expected at the end of this year (2023). It may well include further widening of the whistleblowing legislation to make the unlawfulness of preventing disclosure of sexual harassment definitive.  

Our expert employment law solicitors all have many years’ experience advising individuals who are in your position. We will be able to guide you through the process and to help you secure the best possible outcome.

We offer a range of services, so please contact our friendly customer services team to discuss further via hello@kilgannonlaw.co.uk or 0800 915 7777.

Disclaimer 

The above provides a general overview relating to harassment in the workplace and is not intended nor construed as providing specific legal advice.

This article is for information purposes only and is correct at the time of publication. It does not constitute legal advice.

03.11.23