The government has proposed introducing new protections for employees and workers facing discrimination in the workplace from their employers. These proposals reflect increasing demands for there to be a fairer balance between workers' and employers' rights.

These proposals stem from a package introduced in July this year, designed to crack down on the misuse of non-disclosure agreements and discrimination in the workplace. The proposals include compulsory provision of employee references and restrictions on confidentiality clauses in settlement agreements.

Andrea Leadsom, Business Secretary, has commented on the need to address the small minority of employers who use tactics such as non-disclosure agreements or withholding references to pressurise employees into silence.

Employees' References

There will be a consultation as to whether it should be mandatory for employers to provide references for all their former employees. This is in a move to stop employers using the possibility of not providing a reference as a threat or bargaining tool against their current employees. This new proposal, if implemented, would mean that employers could, for the first time, be required to provide at least a basic reference for any former employee.

Confidentiality Clauses/Non-Disclosure Agreements

There has been a surge in legislative proposals to combat the misuse of non-disclosure agreements as a result of the government's response to the enquiry on non-disclosure agreements (NDAs) which was conducted by the Women and Equalities Select Committee.

The proposed legislation to address the NDA focuses on making the confidentiality clause less restrictive on employees through the following measures:

  • ensuring that confidentiality clauses cannot prevent individuals disclosing information to the police, regulated health and care professionals or legal professionals;
  • ensuring that employers make it clear what the limitations of a confidentiality clause are, so that the individuals signing them fully understand what their rights are;
  • extending current legislation so that individuals signing NDAs will get independent legal advice on the effect of signing a confidentiality clause. This would include making it clear that information can still be disclosed to the bodies mentioned above;
  • introducing new enforcement measures to address confidentiality clauses that do not comply with the new legal requirements – for example an NDA in a settlement agreement that does not comply would be void;
  • producing guidance for solicitors and legal professionals who are responsible for drafting settlement agreements.

Although the concerns about employer tactics have arisen mainly in connection with discrimination complaints, the proposed legislation would apply in all situations involving employee references and NDAs (in agreements with employees and workers). It is part of the of government's Good Work Plan to create a fairer workplace for all.

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