By Ashley Young
The equality watchdog has said that lawyers should not be given all the responsibility for drafting and negotiating gagging clauses.
The Equality and Human Rights Commission(ECHR) said it is ‘calling time’ on non-disclosure agreements being used to cover up discrimination, harassment and victimisation.
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The guidance says employees should not be asked to sign an agreement as part of their employment contract which would prevent them from making a discrimination claim and they should not be prevented from whistle blowing or reporting criminal activity.
The idea of preventing employees from talking to regulators, the police, a medical professional or counsellor, lawyer or immediate family member. Employers can impose reasonable limits on the costs they are willing to pay for the employee to get independent advice. But they should get advice from the lawyer drafting the agreement on the contribution level and take into account the views of the employee’s independent adviser, who could be a lawyer.
The ECHR say employers should be given at least 10 days to seek advice and consider the terms of any agreement they are influenced to make. They have frowned upon the idea of employers dictating who the employee takes advice from. Employers are advised to take legal advice to ensure confidentiality agreements are used and worded appropriately.
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However, the guidance states: ‘Employers should not delegate all responsibility for drafting and negotiating confidentiality agreements to their lawyers. Employers should ensure that they provide instructions to their lawyers on the use of confidentiality agreements when drafting the agreement and when any amendments to confidentiality agreements are being negotiated.
‘Those who advise employers and workers on confidentiality agreements should ensure that they remain up to date with their regulatory obligations and any guidance issued by regulators on this subject.’
Rebecca Hilsenrath, chief executive of the commission, said: ‘We’re calling time on NDAs, which have been used to cover up discrimination, harassment or victimisation. There are no more excuses. Everyone should have the power to speak out about harassment and victimisation. Nobody should be silenced.
‘We all have the right to work in a safe environment and a healthy workplace needs employers to step up and make sure those who work for them have a voice. Our guidance will help make that happen.’
The Law Society is currently reviewing its NDA guidance following a call from the House of Commons women and equalities committee, which published a hard-hitting report on NDAs in discrimination cases. However, it published a guide in August designed to inform the public about NDAs.
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