The Government has just announced plans, as part of its sprawling Employment Rights Bill, to ban the use of non-disclosure agreements, or NDAs, in cases of harassment and discrimination. 

While the details are still vague, what this is likely to mean in practice is that parties can no longer include confidentiality clauses in settlement agreements, where an allegation of discrimination is made. 

Whether this will cover all Equality Act claims or only certain causes of action is unclear. Kenworthy’s Chambers spoke with Employment Barrister Matthew Todd to learn more about the broader impact the NDA ban will have, and how it is likely to shake up the Employment Law landscape for Respondents and Claimants. 

The Impact of Banning NDAs on Respondents

What effect will this have? The most obvious is that discrimination claims will be less likely to settle before reaching the Employment Tribunal. With the potential to avoid reputational damage from a public discrimination allegation removed, Respondents will more likely be inclined to defend Tribunal cases, publicly refuting allegations, rather than settling a case and still facing the possibility of an employee making public accusations without an effective way of defending themselves. 

The Impact of Banning NDAs on Claimants

Losing confidentiality clauses may also cause strife for Claimants. Many employees are concerned about the possibility of former employers or colleagues speaking badly of them following their exit. A confidentiality clause that cuts both ways has long been a way to put such fears to rest. If an employer cannot guarantee confidentiality from the Claimant, they are unlikely to bind themselves to a unilateral commitment to police their employees for rogue Facebook posts. 

The Broader Impact of Banning NDAs

Looking at the broader Tribunal landscape, these measures are likely to increase the number of cases coming into an already overfilled Tribunal system. Given that the Government's proposals to reduce the qualifying period for unfair dismissal and increase the limitation for all claims from three months to six have already led to concerns about increased case numbers, many will wonder how the Tribunal system will cope without increased funding. 

Conclusion

While the aim of the measures announced is commendable, given the high-profile abuse of NDAs that have come to light over the last few years, the broad-brush approach currently proposed may have unintended consequences for all Employment Law practitioners. 

Thanks to Employment Barrister Matthew Todd for explaining the likely impact of banning employers from using NDAs to silence employees making discrimination or harassment claims.

To check the availability of Barrister Matthew Todd for your Employment Law case, call our Employment Clerk Alessandro Saporita-Clark on 0161 832 4036 or email Alessandro@kenworthys.co.uk.

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