Earlier in the year, the government ran two consultation exercises. One focussed on the use of confidentiality clauses (sometimes referred to as NDAs), particularly when settling discrimination and harassment claims. The other related to offering enhanced protection against redundancy to pregnant women and parents returning to work from family related leave. The government has now published responses to both consultations, confirming its intention to take further action in both areas.
The response to consultation on confidentiality clauses recognises that there are legitimate reasons for including them in employment contracts and settlement agreements. However, they should not be used to silence victims of discrimination and harassment. In particular, the government intends to legislate to:
- Ensure that confidentiality clauses cannot prevent someone from making a disclosure to the police, or to regulated health and legal professionals who owe the individual a duty of confidentiality;
- Require confidentiality clauses to set out their limits clearly, so individuals understand when they can still make disclosures to other people;
- Make it compulsory for individuals to receive advice on the nature and limitations of any confidentiality provisions before they can enter into a binding settlement agreement; and
- Introduce enforcement provisions for confidentiality agreements that do not meet the new requirements.
The government is not planning to introduce mandatory wording for confidentiality clauses. Instead, it will work with stakeholders such as the Solicitors Regulation Authority, the EHRC and ACAS to produce guidance on drafting confidentiality provisions. Employers will need to review any standard form confidentiality provisions in contracts of employment or settlement agreements before the new rules come into force and in the current climate may choose to carry out that review sooner rather than later.
In its response to the pregnancy and maternity discrimination consultation, the government confirms that it intends to extend protection for pregnant employees and those returning to work from maternity or adoption leave. An employee who is at risk of redundancy while he or she is on maternity, adoption or shared parental leave already has the right to be offered an available suitable alternative vacancy. That right will be extended to:
- Pregnant employees once they have told their employer that they are pregnant (whether orally or in writing); and
- Employees who have returned from maternity or adoption leave within the previous six months.
Parents returning from shared parental leave will also have protection. However, the detail of that right is still to be worked out – any period of protection will have to be proportionate to the period of shared parental leave taken.