Review of the Legal Changes to Confidentiality Clauses

consultation on confidentiality clauses

In some recent high profile cases involving harassment and discrimination it appears that confidentiality clauses may have been used to silence potential victims.  The Government has now issued a consultation document seeking views on how this might be prevented in future.

What is a Confidentiality Clause?

Confidentiality clauses have a well-established place in employment law.  Typically, employment contracts will contain confidentiality clauses to stop employees sharing trade secrets when they moved to another company or set up their own competing business.

Also when an employee leaves in difficult circumstances they are often asked to sign a Settlement Agreement.  This will usually contain confidentiality clauses to prevent one party “bad mouthing” the other so that both sides can move on without fear of retribution.

Misuse of Confidentiality Clauses

Despite the vast majority of confidentiality clauses being genuinely useful, several have hit the headlines recently where high profile employers appear to have used gagging clauses to silence whistleblowers and intimidate employees who have been subject to alleged discrimination and sexual harassment.  These are often call Non-Disclosure Agreements in the press.

With a real risk that they might become a tool for the rich to cover up criminal activity, the Government is looking at several measures to limit misuse of confidentiality clauses.

The New Proposals for Consultation on Confidentiality Clauses

The proposals for consultation include:

  • Banning confidentiality clauses which stop a victim reporting criminal activity to the police
  • Ensuring that any confidentiality clauses included in an employment contract at the start of the employment relationship are also shown in the written statement of particulars provided at the start
  • Ensuring that confidentiality clauses highlight the disclosures which are not forbidden and voiding any clauses which fail to do this

How can Backhouse Solicitors help?

At Backhouse Solicitors our employment lawyers are experts at advising on confidentiality clauses.  Whether you are an employee with a question about a clause in your employment contract, or an employer seeking to ensure that your trade secrets are properly protected, we can help.

Contact us today to book a free 30 minute consultation with one of our expert employment solicitors to find out more.

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