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NDAs made simple - latest requirements and best practice

04 December 2019

The Solicitors Regulatory Authority has reissued its warning notice on non-disclosure agreements (“NDAs”), shortly after publication of new guidance by the Equality and Human Rights Commission. We’ve created a table to clarify current legal and regulatory requirements, best practice and future proposals for using confidentiality provisions in settlement agreements and employment contracts.

What’s the issue?

NDAs and confidentiality clauses in employment contracts and settlement agreements have become a topic of major interest because of how they can be used to prevent employees from reporting allegations of sexual harassment or other similar misconduct.

While these types of agreements are already subject to legal restrictions, the #MeToo movement has resulted in further action and calls for reform - especially following the publication of details surrounding the NDAs signed by Harvey Weinstein’s former assistant, and hostesses at the Presidents Club annual charity dinner.

Latest developments

The Solicitors Regulatory Authority recently reissued its warning notice on the use of NDAs, which sets out the regulatory requirements for solicitors including in-house counsel. This followed the publication in October of new guidance on NDAs and confidentiality clauses in discrimination cases by the Equality and Human Rights Commission.

Meanwhile, we’re expecting legislation to implement the reforms detailed by the Government its response to a consultation on the regulation of confidentiality clauses. The situation surrounding NDAs is therefore fluid, making it difficult to keep track of different developments and their implications.

Our table

Our table aims to identify the issues when considering including an NDA in a settlement agreement or employment contract in a situation which involves, or could involve, harassment or discrimination. We have separated the current legal and regulatory requirements from best practice and future proposals.

To download our table, please click here.

 

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