Government consultation on confidentiality clauses

On 4 March the Government published its consultation on “measures to prevent [the] misuse [of confidentiality clauses] in situations of workplace harassment or discrimination.

The consultation is widely regarded as being a direct response to the stories published late last year concerning the use of such clauses by Sir Philip Green’s companies, as highlighted in The Daily Telegraph once he was named in Parliament and the injunction against the paper was subsequently lifted. Just this week, The Sun has published a very concerning video of Sir Philip appearing to behave in a very familiar manner (choosing my words carefully!) with a member of staff who seems to be none too pleased with his attention.

The executive summary confirms the Government’s commitment to upholding and upgrading workers’ rights. Whether you accept that commitment will more than likely depend on your political view. However, the summary makes clear that “harassment or discrimination of any sort cannot be tolerated in the workplace”. It is acknowledged that confidentiality clauses have a “right and proper place” in the context of employment law, both in terms of employment contracts and settlement agreements. Existing limitations are noted, including the bar on preventing protected disclosures (i.e. whistleblowing) and the requirement for independent advice in connection with settlement agreements.