PDA respond to BEIS consultation on confidentiality clauses

The Department of Business, Energy and Industrial Strategy (BEIS) has consulted on confidentiality clauses, particularly in relation to settlement agreements. The government said:

Fri 17th May 2019 The PDA

“The consultation seeks views on what limitations might be put on confidentiality clauses, to ensure they cannot be misused and to clarify what they can and cannot cover. In particular, the Government proposes to legislate that no confidentiality clause can prevent a person making any disclosure to the police. This will make it clear that, regardless of what a confidentiality clause says, a victim can discuss a matter with the police or report a crime without fear of reprisal under a confidentiality clause.”

The PDA was supportive of the proposal to legislate that no confidentiality clause could prevent a person making a disclosure to the police, but we feel that the government should take a wider approach to prohibiting the use of such clauses. We gave examples of confidentiality clauses we had seen in settlement agreements which would be unnecessarily restrictive or leave people unsure of their rights.

Our recommendations included:

  • All disclosures to any Prescribed Person under whistleblowing legislation should be excluded from confidentiality clauses where the person disclosing the information believes it is relevant or related to a protected disclosure, or where the person believes there is a public interest in disclosing it.
  • It should be explicitly permissible that individuals can disclose the details of a non-disclosure agreement to a trade union or lawyer in order to seek the necessary advice about the nature of the disclosure limitations. Otherwise, the individual could be stuck in a “catch 22” situation, being unable to get the advice they need to check if further disclosure is prohibited or not.
  • Employers must not be able to prohibit the disclosure of the existence of a confidentiality clause.
  • Employers must not be able to use non-disparagement clauses as a means of effecting a confidentiality clause in relation to public interest matters.
  • If the government intends to use the Tribunal system, then the compensatory guidelines must be separate and more in line with those that can be awarded through the civil courts.
  • The same rights implemented by the government must also apply to self-employed individuals and not only ‘workers’.
  • An addendum could be included in settlement agreements and statements of particulars of employment, to cover different eventualities in relation to confidentiality clauses. To ensure that such addendums remain within the law they should be worded within the requirements of an Associated Code of Practice. Such a code would have legal standing and represent a plain language interpretation of those items that can or cannot be included and could in addition provide an indication of good practice.

DOWNLOAD THE PDA’S FULL RESPONSE HERE

thumbnail of PDAU – Confidentiality Clauses BEIS Final

 

DOWNLOAD THE BEIS CONSULTATION DOCUMENT HERE

thumbnail of confidentiality-clauses-consultation

The Pharmacists' Defence Association is a company limited by guarantee. Registered in England; Company No 4746656.

The Pharmacists' Defence Association is an appointed representative in respect of insurance mediation activities only of
The Pharmacy Insurance Agency Limited which is registered in England and Wales under company number 2591975
and is authorised and regulated by the Financial Conduct Authority (Register No 307063)

The PDA Union is recognised by the Certification Officer as an independent trade union.

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