April 3, 2019
The Government are attempting to crack down on the use of non-disclosure agreements (NDA) and confidentiality clauses by employers to cover incidents in the workplace including incidents of sexual or racial harassment, by issuing a consultation document on ways to tighten up the rules.
The consultation is due to close on 29th April 2019.
Tayntons Employment Specialists have provided some top tips to make a NDA more likely to be enforced.
What can employers do to make a NDA more likely to be enforced?
- Rather than a confidentiality clause in a contract of employment or settlement agreement, use a NDA as a standalone agreement. The fact the contract is all about confidentiality, rather than it being one clause of many, is a factor in balancing the public interest in enforcing a contract.
- Ensure that it include exceptions. Make it clear that the agreement does not prevent disclosures to regulatory bodies, or information which is already or comes in the public domain other than through the employee.
- Restrict the length of time of a NDA. Unless there is a good reason otherwise, keep the NDA limited for a specified period after the employment ends. Seek advice on what would be acceptable based on the specific circumstances.
- Invite them to obtain independent legal advice before signing a NDA, and make sure that a legal representative countersigns in an advisor’s certificate. This is an important safeguard to avoid the suggestion that you took unfair advantage of your employee.
- Provide a clear written description of a person’s rights before they sign either a contract of employment or settlement agreement, so that they fully understand their legal rights prior to signing said document.
For more information or advice, book a consultation with one of our employment team in Gloucester on 0800 158 4147. Alternatively, you can contact us by completing our contact form online to make an enquiry.