Second Special Report
The Women and Equalities Committee published its Ninth Report of Session 2017–19, The use of non-disclosure agreements in discrimination cases (HC 1720) on 11 June 2019. The Government’s response was received on 15 October 2019 and is appended to this report.
Appendix: Government Response
Introduction
The Government welcomes the Committee’s report on the use of non-disclosure agreements in discrimination cases and agrees with the Committee that it is unacceptable that cases of sexual harassment and discrimination in the workplace are covered up by the use of confidentiality clauses or non-disclosure agreements (NDAs). The Government also believes that there is a legitimate place for non-disclosure agreements signed as part of an employment contract or a settlement agreement. However, using these agreements to silence and intimidate victims of harassment and discrimination cannot be tolerated.
The Committee gathered oral and written evidence from a wide range of people and organisations, including individuals, employers and lawyers. The Government has used this evidence, alongside the evidence gathered from the Government’s own consultation1 on the use of confidentiality clauses in cases of sexual harassment and discrimination, to develop proposals that will prevent the misuse of confidentiality clauses or NDAs. The Government responded to its consultation on 21 July 2019, setting out proposals to:
- legislate so that no provision in a non-disclosure agreement can prevent disclosures to the police, regulated health and care professionals and legal professionals;
- legislate so that limitations in non-disclosure agreements are clearly set out in employment contracts and settlement agreements;
- produce guidance for solicitors and legal professionals responsible for drafting settlement agreements;
- legislate to enhance the independent legal advice received by individuals signing non-disclosure agreements; and,
- introduce enforcement measures for non-disclosure agreements that do not comply with legal requirements in written statements of employment particulars and settlement agreements.
The proposals aim to strike the right balance between continuing to allow the legitimate use of NDAs and preventing their misuse.
The Committees report raised forty-five recommendations and concerns for the Government in relation to the misuse of non-disclosure agreements in discrimination cases. The Government’s response to these recommendations is set out below.
The Government consultation and consultation response referred to confidentiality clauses, rather than NDAs. However, in this response they are referred to as non-disclosure agreements (NDAs) to be consistent with the Committee’s terminology.
1 https://www.gov.uk/government/consultations/confidentiality-clauses-measures-to-prevent-misuse-in-situations-of-workplace-harassment-or-discrimination
Published: 29 October 2019