Confidentiality clauses

The TUC emphasises the importance of drawing a distinction between pre-event confidentiality agreements, confidentiality clauses in employment contracts and the variety of different confidentiality clauses (such as those relating to non-disclosure, non-derogatory statements and references) used in settlement agreements (including COT3 agreements). The different contexts present different issues and therefore, different solutions are required.
 

In relation to pre-event confidentiality agreements restricting rights relating to disclosure of information regarding discrimination or harassment, or attempting to restrict the right to pursue future claims of this nature, the TUC believes these should be banned and that their use is never justified.
 

In relation to confidentiality clauses of this type in contracts of employment, the TUC does not foresee any circumstances in which it would be appropriate or ethical for an employer to require a prospective worker to agree to such obligations. Therefore, the TUC suggests that the use of confidentiality clauses in this context is also banned.
 

However, the TUC does not advocate a ban of the use of confidentiality clauses in settlement agreements. The TUC believes a balance should be sought between introducing new measures to ensure confidentiality clauses in settlement agreements are only used in an appropriate, clear and ethical manner, and protecting the right of the individual to enter into confidentiality obligations, or require them from their employer, as long as they freely and willingly chose to do so and receive appropriately legal advice to inform their choice.
 

We propose this balance could be achieved through a series of reforms relating to settlement agreements (including COT3 agreements), which we have elaborated below. In summary, these include:

 

– a recommendation that confidentiality clauses are only used in exceptional circumstances, to bring to an end automatic use of precedent clauses which may not be at all relevant to the individual circumstances.

– recommended confidentiality clauses for different situations such as a standard non-disclosure clause and non-derogatory statement clause.

– a requirement that where a non-disclosure clause restricts disclosures to family, friends, and colleagues, this will not restrict disclosures to immediate family members and close friends and that all such obligations will be reciprocal.

– a suggestion that as a matter of good practice employers themselves provide specific in-house guidance for managers on the use of confidentiality clauses, including that they should only be used in exceptional, clearly justified circumstances.

The TUC urges the government to go beyond the proposals in this consultation and to carry out more significant reform in this area.
 

The TUC also emphasises the pressing need to resolve the fundamental problem of discrimination and harassment in the workplace and strongly advocates a new, easily enforceable, preventative duty on employers to stop discrimination and harassment before it occurs, a statutory right to time off for trade union equalities representatives and the reintroduction and strengthening of S. 40 of the Equality Act 2010 by removing the requirement that an employer needs to know that an employee has been subjected to two or more instances of harassment before they become liable.
 

We also wish to highlight the unique and valuable role that trade unions have to play in securing workplaces free of harassment and discrimination. They provide a mechanism for collective voice and obtain through communication with their members an awareness of where particular workplaces manifest a pattern of discrimination and harassment. This in turn enables trade unions to raise the alarm on discrimination and harassment and to work with employers and individuals to eliminate discriminatory behaviour.
 

Please note that unless stated otherwise, reference to confidentiality clauses in this consultation response is only with respect to confidentiality clauses in situations of workplace discrimination or harassment.