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NDAs – what do you need to know?

NDAs – what do you need to know?

By Sophie Vanhegan - 30 April 2018

With all of the recent press attention on the #MeToo movement, the spotlight has recently been placed on the use of non-disclosure agreements (NDAs) or confidentiality provisions in workplace settlement agreements. With a number of lawyers in the employment sphere and a former assistant to Harvey Weinstein (who had been subject to a NDA with him and Miramax) giving evidence on them before Parliament’s Women and Equalities Committee last month and the solicitors’ regulator, the SRA, also issuing a warning notice on how solicitors should use them (including when advising clients on them).

What this means is that employers should check that their confidentiality obligations in their settlement agreements are up-to-date and therefore:

  • Ensure that they do not prevent the employee from blowing the whistle or from otherwise making disclosures which are protected by statute (such as reporting a criminal offence) (and consider being explicit on what is not prevented).

  • Consider making express provision to allow the employee to keep a copy of the settlement agreement (the Harvey Weinstein assistant hadn’t been allowed to keep a copy of her settlement agreement).

For many, this should hopefully mean just tweaking existing provisions rather than a wholesale rewrite.

Confidentiality can be useful for both parties, as they can often facilitate settlements which may not happen without them and allow both sides to avoid personal and upsetting litigation. However, the conversation about the use of NDAs in settlements, particularly in sexual harassment cases, is not over yet, and we may yet see further restrictions on their use.