The Government has launched a consultation about restricting the use of confidentiality clauses in employment. This comes on the tail of the #metoo movement and is already partially covered in English Law.

 

Any confidentiality clause is void if it tries to prevent whistleblowing. That is to say, a public interest disclosure.

The proposals are to tighten this to include attempting to prevent reports to the police, and this is particularly designed to include cases of sexual deviance. The proposals also include requiring employers to highlight to employees which issues cannot legally be covered by a non-disclosure clause.

As a matter of opinion, the principles in this are like motherhood and apple pie, in that there is nothing to find objectionable. However, I would point out that lawyers should already be highlighting to employees what they cannot be prevented from doing, before employees sign such agreements. I also worry a little, just a little, on how employers will respond to legitimate complaints if there is no hope of them obtaining closure from reaching a sensible settlement with an employee.

Another observation is that the proposals include measures to ensure that confidentiality clauses are included in the statement of particulars of employment. Surely the law already recognises that employees often don’t bother to read or take notice of the content, take for example the need for the working time opt out to be outside of the contract.

A copy of the Government’s Consultation can be found here:  https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/783011/confidentiality-clauses-consultation.pdf