It is undoubtedly the case that a big part of the current debate on sexual harassment in the workplace centres around non-disclosure agreements (NDAs), or confidentiality clauses as the Government prefers to call them. In some respects the issues around these clauses are matters of perception. For it has always been the case that those who sign up to these agreements are not prevented from subsequently going to the police, or speaking to the relevant Regulators, or consulting their medical practitioner for the purposes of obtaining medical advice or making a “protected disclosure” pursuant to our “whistleblowing” legislation.
However in a distressed, confused, and at times bewildered state, complainants can be forgiven for not being clear as to their position in that respect. It is therefore absolutely right for the Government to move to clear up that uncertainty, and that is what the current debate has been around. For some time the Government has indicated it wanted to legislate, and in March 2019, it issued its Consultation Paper with its proposals for change. It elicited a considerable number of responses, which underlines the importance of this issue for all those involved in this process, my Firm, Kingsley Napley LLP, being among those that wrote in to offer our views.
So what does the recent Government paper say, what does it commit to, have they made any missteps, and could they have gone further?