Gagging Orders

The government has been talking about the so called “gagging orders” for some time now. Most recently they have published a response to their consultation on None Disclosure Agreements and Confidentiality Clauses. The government acknowledges that when such agreements and clauses are used for their legitimate means they hold a valid place within the employment law context. However, they are often abused and misused by employers who try and unreasonably silence and intimidate victims of harassment and discrimination. The government pledge to reform this particular area to prevent such misuse.

In particular, it proposes to:

• legislate to ensure that a confidentiality clause cannot prevent an individual disclosing to the police, regulated health and care professionals or legal professionals

• legislate so that confidentiality clauses in both settlement agreements and written statements of particulars clearly set out their limitations

• legislate to ensure that, when signing a settlement agreement, individuals receive advice not only on the nature of the confidentiality requirement but also on the limitations of confidentiality clauses

• produce guidance on drafting requirements for confidentiality clauses

• introduce new enforcement measures for confidentiality clauses that do not comply with legal requirements