Our legal officer, Elizabeth Gardiner, joined a discussion on Non Disclosure Agreements at The Lawyer’s conference on Managing Risk and Litgation in November. Protect shared the panel with the Solicitor’s Regulatory Authority and lawyers who advise employers concerns about the misuse of NDAs had been brought to light by the #Metoo campaign and the Parliamentary Women and Equalities Select Committee. Too often whistleblowers are confused or prevented from raising concerns post-employment by the use of NDAs.
It was good to note that practice is already changing, ahead of proposed legislation in this area. The Government has promised to improve the wording of NDAs – with a requirement that their limitations should be explained in plain English, as well as making it clear to anyone signing an NDA that information may still be disclosed to the Police and doctors. Protect argued that more work is needed here and that warranties should also be outlawed: it is no use having a beautifully worded NDA if another clause in the settlement agreement contains a promise that the employee knows of nothing that could be raised with a regulator. And thinking that NDAs will address the endemic sexual harassment in the workplace is naive – by the time the employee is agreeing an exit package, the damage is done. Protect would like much stronger obligations on employers to prevent this wrongdoing in the first place. Delegates asked interesting questions and it was a lively discussion.