Following the fallout from the Harvey Weinstein allegations, Ministers have announced that employers requiring staff to sign non-disclosure agreements (which will include confidentiality provisions in settlement agreements) will be required to permit individuals to receive independent legal advice as to the limitations of those provisions. Specifically advisers will be required to inform the individuals that they can still speak to the police, regulated healthcare professionals and lawyers. Questions are already being raised about whether the legislation goes far enough, and specifically whether regulatory bodies, such as the Financial Conduct Authority etc. should have been included.
Many employers have already updated their template agreements to make it clear that the non-disclosure obligations do not apply to disclosures to the police and have gone further to include reference to industry specific regulators in an effort to address the concerns raised over the misuse of NDAs. Whilst employers obviously wish to ensure that they receive value for any severance payment, and confidentiality is a key part of that, the value should only come in the form of settling potential claims, preventing individuals from “badmouthing” their former employer and discussing terms of settlement etc. As a matter of public policy it should not seek to prevent individuals from raising genuine concerns about potential crimes or arguably over regulatory breaches.
If you are an employer and would like wording to update your template agreements please do contact us.