UK Government Consults on Proposals to Prevent Misuse of Confidentiality Clauses

The UK government has launched a consultation seeking evidence and views on the use of confidentiality clauses in an employment context and the introduction of legislation to tackle their misuse.

This consultation is being launched in response to concerns that some employers are using confidentiality clauses to “gag” victims of workplace harassment or discrimination. Such concerns were raised last year, for example, by the Women and Equalities Select Committee in its inquiry into sexual harassment in the workplace.

The consultation will run until 29 April 2019 and will cover:

• Whether there should be more limitations on what confidentiality clauses can say to make it easier for workers to understand what they can and cannot do 
• Whether confidentiality clauses in settlement agreements and all written statements of employment particulars should be required to clearly highlight any disclosures that are not prohibited (e.g. disclosures to the police) 
• A new requirement that the independent advice a worker receives before entering into a settlement agreement should also cover any confidentiality provisions 
• Whether any confidentiality clause in a settlement agreement that does not meet any new wording requirements should be void and thus unenforceable 
• What enforcement mechanisms there should be for any breaches of these new provisions 

We will be preparing a response to the consultation, so if you have any views you would like us to share with the government, please speak to one of the following people or your usual contact in the Labour & Employment team.