Non Disclosure Agreements in Discrimination Cases
– new report released
Published 17 June 2019. By Sancha O’Neill
A non-disclosure agreement is described by the Committee as “a contract that contains clauses that restrict what a signatory can say, or who they can tell, about something.”
The Committee investigated the use of NDAs due to the findings of their 2018 Report on Sexual Harassment in the Workplace. The 2018 report highlighted concerns that some allegations of sexual harassment were ‘dealt’ with using settlement agreements, thus preventing any allegations from ever being properly investigated.
In their new report the Committee highlighted how common confidentially clauses are, and how in some instances thye may be beneficial, but also warned that NDAs could be being used unlawfully. They cautioned against the detrimental impacts they can have on the signee, such as fear of repercussion or jeopardising future career prospects (especially within the same industry sector), and the impact on our society, potentially allowing such cultures to go unchallenged.
With regards to drafting NDAs, the Committee recommended how any such clause should be clear and specific, and contain “standard, plain English explanations of the effect of clauses and their limits.”
The Committee highlighted how the main regulator, the Solicitors Regulation Authority (England & Wales), have issued a Warning Notice of the use of NDAs that allows for potential disciplinary action if they are used incorrectly. The Committee however urge for more; and state how Regulators should make it clear that strict enforcement action will be taken if they become aware of any actions that do not meet expected ethical standards.
The Committee, in light of the above, call for the Government “to reset the parameters” within which NDAs can be used when there are allegations of unlawful discrimination and ultimately “to stop the use of NDAs to cover up allegations of unlawful discrimination whilst protecting the rights of victims to move on.”
Sancha O’Neill, Trainee Solicitor in MKB Law’s Employment Department comments: “The use of NDAs are very common, these recent recommendations and identified issues will require careful consideration by lawyers and clients engaged in employment litigation.”
This article is for general guidance only and should not be regarded as a substitute for professional legal advice. Report Source