The UK Government has proposed an amendment to the Employment Rights Bill – which seeks to ban the use of non-disclosure agreements (NDAs) in cases involving workplace harassment and discrimination.
While the aim of Clause 22A is to promote transparency and empower victims to speak out, Spencer West Employment Partner Bethan Jones cautions that the change could have unintended consequences for those it intends to protect.
Quoted in the Law Society Gazette, Benefits Expert, and Reward Strategy, Bethan argues that removing the option for confidentiality could diminish employees' ability to resolve disputes discreetly.
"This is a significant change to the enforceability of confidentiality provisions, which up until now have been widely used, particularly in settlement agreements.
"Whilst the change is clearly aimed at ensuring transparency in the workplace, it may have unintended consequences which will negatively impact both employers and employees. Employers may be disincentivised from settling claims which they think they can defend, since they will no longer benefit commercially from settling a claim which may not be well-founded, if they cannot also benefit from some reputational protection.
"This could result in employees having to commit to litigation in difficult circumstances, when they may otherwise have received a settlement, allowing them to move on more quickly and have a clean break.
"Employees have always had the option to go to a Tribunal and share their case publicly if they want to and many genuine victims of harassment would rather choose to preserve their anonymity. This change will remove that choice."
The debate has highlighted a fundamental tension between safeguarding victims' rights to speak out and preserving their ability to resolve matters confidentially.
As Bethan points out, NDAs – when used appropriately – can offer victims a faster route to closure, without the stress and delay of formal litigation.
Read the full articles here: Law Society Gazette, Benefits Expert, Reward Strategy.
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