New consultation on confidentiality causes

Earlier this month, the Government announced a new consultation on confidentiality causes to ‘ensure that harassment or discrimination of any sort cannot be tolerated in the workplace’ (1). As part of the Department of Business, Energy & Industrial Strategy’s commitment to ‘upholding and upgrading worker’s rights’, ‘the purpose of this consultation is to seek evidence and views of the use of confidentiality clauses in the employment context, and to propose further regulation to tackle their misuse’ (1).

On the whole, confidentiality clauses are used in two ways. These are defined in the consultation document as either ‘part of employment contracts, to protect trade secrets for example, or part of settlement agreements, for example to allow both sides of an employment dispute to move on with a clean break’ (1).

Legal limitations for confidentiality clauses do exist, but these can quickly become an ambiguous area for many. Currently, clauses ‘cannot remove the protections around making a protected disclosure, or ‘whistleblowing’ (1). That being said, other legal criteria must be complied with for a particular disclosure to be protected (1).

It begins to get a bit more complex with settlement agreements. The consultation summary reminds us that ‘confidentiality clauses cannot ordinarily prevent someone taking a matter to an employment tribunal, though settlement agreements (which usually contain a confidentiality clause) can waive this right’ – the worker in question must receive independent legal advice for these to be valid (1). The operative word is ‘ordinarily’. Unfortunately, evidence has arisen which suggests that despite such legal protections, some employers have misused confidentiality clauses ‘to suggest victims of harassment cannot make any disclosures and intimidate them into silence when they have faced harassment or discrimination’ (1). This can happen, whether intentionally or not, as a result of ambiguity. For example:

  • Ambiguous confidentiality clauses might ‘be or feel all encompassing, causing a worker to believe that they cannot discuss anything that occurs in the workplace with anybody’ – despite the law suggesting otherwise (1).
  • Unclear clauses could suggest a worker doesn’t have rights to whistleblowing or taking a matter to a tribunal – a right which cannot be overridden (1)
  • Or they can be too broad, insisting that workers do not discuss an issue under consideration with people such as the police, a doctor or therapist (1).

The aim of the consultation is to therefore seek challenge and input as to what further legal limitations and measures can be put in place to avoid misuse and provide greater transparency as to what they do and do not cover (1).

So far the Government’s four proposals are common sense:

  • That the legislation explicitly states that such clauses cannot prevent someone disclosing information to the police, so that victims are not also left with the anxiety of potential reprisal (1).
  • All clauses must ‘clearly set out their limitations, either in settlement agreements or as part of a written statement of particulars, so workers know the rights they have when they have signed one’ (1).
  • Whilst independent legal advice is currently required for a ‘settlement agreement to be valid’, another proposal is to extend this requirement to ensure workers are specifically advised on what the agreement covers and their rights (1).
  • Any settlement agreement that does not meet new wording requirements is made void entirely – a means of enforcement in addition to employment tribunals (1).

As I write this following International Women’s Day, I’m feeling particularly reflective. Not from a gendered perspective, as I truly believe this new consultation is taking steps towards breaking down barriers for workers across the board. But a quote surfaced over the past week from Melinda Gates, and it’s stuck with me: ‘use your voice and you can affect change’ (2). This consultation is set up with good intentions. Encouraging workers to have their say, to use their voice to affect change. Change which will hopefully allow victims, from all backgrounds and perspectives, to use their voice, be empowered and affect positive change to their situation. Money should never be used as a weapon to hide, and therefore condone, abuses of power by either gender. The disinfectant of transparency is the only way that abhorrent work practices can be outlawed, through public opinion as well as legislation.

The initial proposals are common sense, but they need more substance. It’s up to us to get involved to flesh these out, filling in the loopholes and making the grey areas black and white so to speak, so that new legal limitations are precise and effective to bring about meaningful change.

The consultation closes on 29th April and I strongly urge people to participate.