The guidance is designed to clarify key aspects of NDAs and signposts where to get advice from.
The government fed back on its consultation on NDAs, the highlights of which we covered as part of an article in August. Part of this feedback included the intention to provide guidance for legal professionals who draft settlement agreements.
Separately, The Law Society has produced a simple two-page 'what you need to know' document which is addressed directly to workers.
What does it say?
Using simple terms, the Society's document aims to de-mystify NDAs for workers who have been asked to enter into them by an employer. It sets out the ways in which one may be entered into, such as via a contract of employment or a settlement agreement and encourages workers who are asked to sign up to one to find an independent solicitor for advice. It also suggests that if a worker has already signed up to terms but is unhappy with any NDA, then they should speak to a solicitor to see what options they have.
Perhaps the key message in the document is that workers should make sure that the confidentiality terms work for them as well as the employer. In this sense, the document seeks to empower workers to negotiate and not to just accept the terms an employer sets out if the worker has an issue with them.
The government's consultation showed that there were widespread concerns that NDAs were used in ways to obscure or discourage an individual's rights. The Law Society has dedicated a section of its document to make clear what the limits of an NDA are and that NDAs entered into under pressure may not be enforceable.
This document does not tell employees or employers anything new. However, it does add to the pool of available material [published by official sources (i.e. the government or sector regulators)] which help to clarify and simplify the issue of NDAs.
This information is clearly designed to help level the playing field between individuals and organisations and to empower individuals by making it clear that they have rights in regard to NDAs and access to resources which can help them navigate the issue. Of course, the practical reality for many remains whether they genuinely have any choice in whether or not to accept the NDA.